Nye v. Lipton , 50 N.C. App. 224 ( 1981 )

WEBB, Judge.

At the outset we note that the plaintiff, who has the burden of proof, relies on testimonial affidavits to establish there is no genuine issue of a material fact. For a well-reasoned article on this subject, see Kidd v. Early: Summary Judgment on Testimonial Evidence in North Carolina by Rebecca Weiant Giles, 55 N.C.L. Rev. 232 (1977). Our Supreme Court has passed on the use of testimonial affidavits on motions for summary judgment in Kidd v. Early, 289 N.C. 343, 222 S.E. 2d 392 (1976). As we read Kidd, our Supreme Court holds that G.S. 1A-1, Rule 56 is used to determine whether there is an issue of fact to be tried. If the moving party files papers, including testimonial affidavits which show there is not a triable issue, the opposing party pursuant to Rule 56(e) and (f), must file papers which show there is a triable issue or the moving party will be entitled to summary judgment. The papers filed by the moving party must not be self-contradictory or circumstantially suspicious, and the credibility of a witness must not be inherently suspect either because he is interested in the outcome of the case and the facts are peculiarly within his knowledge, or because he has testified as to matters of opinion involving a substantial margin for honest error. There must not be gaps in the evidence and inferences inconsistent with the existence of an essential element may not be made from the testimony.

In the case sub judice, the plaintiff has filed affidavits by witnesses other than himself which are not inherently incredible and are not self-contradictory nor susceptible to conflicting inferences which establish the following facts: (1) plaintiff made a loan to C. Paul Roberts in the amount of $33,000.00 for which the plaintiff took a note from C. Paul Roberts; (2) C. Paul Roberts gave written instructions to his attorney-in-fact Robert I. Lipton to pay the $33,000.00 to the plaintiff from the first monies of C. Paul Roberts which came to Robert I. Lipton, and Robert I. Lipton agreed to do this; (3) Robert I. Lipton received $200,000.00 for C. Paul Roberts by check dated 11 November 1976, and (4) Robert I. Lipton did not pay the plaintiff as he had agreed to do. If these facts are not in issue the plaintiff is entitled to summary judgment. In order to show there was a triable issue, the appellant filed an affidavit which showed $86,174.54 had been received by Robert I. Lipton for C. Paul Roberts between 12 July 1976 and 1 November 1976 and $8,697.20 had been paid by Robert I. Lipton to the First Union National Bank for the plaintiff during that period. In explanation of this payment, plaintiff filed his own affidavit as well as the affidavit of Robert N. Rosenstein. Both of these affidavits stated that in a transaction not connected with the subject matter of the case sub judice, the plaintiff and several other persons had borrowed money from the First Union National Bank and invested it in a project of C. Paul Roberts. Robert I. Lipton was to make the note payments for plaintiff and the others and did make several of them before his death. This explanation was uncontradicted.

We hold that the defendant’s affidavit does not so contradict the plaintiff’s affidavits as to create a triable issue. Defendant’s affidavit does not contradict the evidence that Robert I. Lipton received a check for $200,000.00 dated 11 November 1976. It states that $8,697.20 was paid to First Union National Bank for plaintiff but does not show why this payment was made. The plaintiff’s affidavit and the affidavit of Mr. Rosenstein explain without contradiction that this payment was for a separate transaction. Although the plaintiff is relying on his own affidavit to support in part his explanation of the transaction, the facts he states are not peculiarly within his knowledge. He supports his affidavit with documents and the affidavit of Robert N. Rosenstein. We hold that these affidavits and documents establish that there is not a triable issue as to the purpose of the payment of the $8,697.20 to the First Union National Bank.

The appellant contends it was error to grant the motion for summary judgment against him after judgment was entered against his co-defendant, C. Paul Roberts. The appellant argues that the liability of a principal and agent is in the alternative and both cannot be liable. The appellant cites Plumbing Co. v. Harris, 266 N.C. 675, 147 S.E. 2d 202 (1966) and Walston v. Whitley & Co., 226 N.C. 537, 39 S.E. 2d 375 (1946) for the proposition that the plaintiff elected his remedy by getting a judgment against Roberts, and he cannot now proceed against the administrator. We do not believe either of these two cases is precedent for the case sub judice. In Plumbing Co., our Supreme Court held that a suit for breach of contract does not lie against a principal contractor after the subcontractor has secured a lien on the same claim against the landowner on the theory that the contract was made with the landowner. Our Supreme Court would not allow judgments on inconsistent claims. In Walston, our Supreme Court affirmed a dismissal as to the agent when the plaintiff sued the principal and agent for breach of warranty. Our Supreme Court held that so long as the agent acted within the scope of his authority he was not liable. In the case sub judice the plaintiff is pursuing separate claims growing out of the same transaction. His claim against C. Paul Roberts is based on the theory that he has made a loan to C. Paul Roberts which has not been paid. His claim against the appellant is on the theory that Robert I. Lipton as attorney-in-fact for C. Paul Roberts was under instructions from C. Paul Roberts to pay the debt to plaintiff, and Robert I. Lipton failed to pay the debt after receiving funds to do so. These two claims are consistent and plaintiff may pursue both of them. The payment of either claim will extinguish both.

The appellant next contends there was a triable issue as to waiver by the plaintiff. He argues that Robert I. Lipton was bound by the instructions in the letter to pay “[fjrom the first monies coming into your hands ... payable to [Roberts]” the amount due under the loan. Appellant argues there is evidence in the record that with the full knowledge of the plaintiff the “first monies” were not paid to plaintiff but were applied on behalf of the plaintiff to other obligations owed by the plaintiff to the First Union National Bank. The appellant contends that by accepting the benefits without protest, the plaintiff waived his right to strict compliance with the contract and cannot now recover damages because of Robert I. Lipton’s failure to perform. A party may waive a contract right by a voluntary and intentional relinquishment of a known right. See Jones v. Insurance Co., 254 N.C. 407, 119 S.E. 2d 215 (1961) and 17A C.J.S. Contracts § 514(1) (1963). We hold that there is not sufficient evidence in this case for a jury to find that Charles B. Nye intentionally and knowingly relinquished his right to have Robert I. Lipton pay him the $33,000.00. All the evidence is that Charles B. Nye insisted throughout the period in controversy that Robert I. Lipton pay him the $33,000.00. There is no evidence that Charles B. Nye agreed that the payment to First Union National Bank would be in lieu of the repayment of the note for $33,000.00.

Appellant also contends plaintiff is estopped from getting a judgment against him. Appellant relies on Hamilton v. Hamilton, 296 N.C. 574, 251 S.E. 2d 441 (1979); English v. Realty Corp., 41 N.C. App. 1, 254 S.E. 2d 223, disc. rev. denied, 297 N.C. 609, 257 S.E. 2d 217 (1979); Redevelopment Comm. v. Hannaford, 29 N.C. App. 1, 222 S.E. 2d 752 (1976). We do not believe any of these cases help the appellant. There is no evidence that the plaintiff has taken inconsistent positions, nor is there any evidence that Robert I. Lipton or the appellant changed his position by relying on representations of the plaintiff. Estoppel does not apply.

The defendant next contends that much of the affidavit testimony upon which the court based its decision should have been excluded under G.S. 8-51 as testimony of transactions with a deceased person. Defendant contends the affidavits of plaintiff and C. Paul Roberts should not have been considered since both were parties to the action and both were interested in the outcome. We believe that the affidavit of Timothy Oates is sufficient to support summary judgment for plaintiff if the defendant had not filed the affidavit in regard to the payments to the First Union National Bank. When the defendant offered evidence as to this transaction, he opened the door for the plaintiff to explain it by his own affidavit. See Pearce v. Barham, 267 N.C. 707, 149 S.E. 2d 22 (1966).

Affirmed.

Chief Judge MORRIS and Judge CLARK concur.