Bizzell v. Bizzell , 247 N.C. 590 ( 1958 )

101 S.E.2d 668 (1958) 247 N.C. 590

Fay BIZZELL
v.
J. Eustace BIZZELL.

No. 312.

Supreme Court of North Carolina.

January 31, 1958.

N. H. Godwin and Bryant, Lipton, Strayhorn & Bryant, Durham, for plaintiff, appellant.

J. Faison Thomson & Son, Goldsboro, for defendant, appellee.

PARKER, Justice.

Plaintiff's assignment of error No. 32 is based upon his exceptions 33 through 40, both inclusive. Each of these exceptions relate to the admission of evidence by the court at the May Term 1957 in respect to defendant's tender of monies and deeds to plaintiff to show full performance on his part of the agreement of 1 May 1954, copied in full above. Plaintiff contends that she appealed to the Supreme Court from the judgment rendered at the March Term 1957, and while such appeal was pending in the Supreme Court, the Superior Court of Wayne County was functus officio, and could hear no evidence, and enter no judgment as to defendant's plea in bar of accord and satisfaction at the May Term 1957.

A technical question might be raised as to whether defendant's plea in bar is one of accord and satisfaction, or one of compromise and settlement. However, this question is not raised by the briefs of counsel, and the case was heard on the theory that the plea in bar was one of accord and satisfaction. Plaintiff's action is for an accounting for rents and profits, and to recover $24,000 from the proceeds of the sale of realty: it is not an action seeking recovery of a freehold or inheritance. "Some confusion arises in the use of the terms ``accord and satisfaction,' ``compromise and settlement,' and ``release', for in the practical situations out of which the cases arise these concepts coalesce. * * * There has generally been an interchangeable use of the terms ``accord and satisfaction' and ``compromise and settlement.' The view has been taken that any distinction between the two is unimportant where the agreement is executory, since, like satisfaction to an accord, in order to be a defense to an action on the original claim, a compromise must be followed by a settlement in the sense of payment; but the better rule, and the one which gives force to the distinction between these subjects, is that although performance is necessary to a complete accord and satisfaction, this is not essential to a valid compromise. Moreover, a compromise must be based upon a disputed claim, while an accord and satisfaction may be based upon an undisputed or liquidated claim." 11 Am.Jur., Compromise and Settlement, p. 247. Following the theory of the trial below, Lyda v. Town of Marion, 239 N.C. 265, 79 S.E.2d 726, we shall consider the plea in bar as one of accord and satisfaction. To call it a compromise and settlement would be of no practical benefit to plaintiff.

The accord is the agreement, and the satisfaction is the execution or performance of such agreement. Dobias v. White, 239 N.C. 409, 80 S.E.2d 23. In the agreement entered into by and between defendant and his wife, C. K. Bizzell and wife, Louise B. Stengel and husband, and plaintiff, dated 1 May 1954, it is plain that the parties thereto agreed that it is only the performance of that agreement that shall have the effect of an accord and satisfaction. Therefore, if defendant could not prove that he had fully performed the agreement, his plea in bar of accord and satisfaction would constitute no defense, and would not bar plaintiff's action.

Judge Moore heard only one phase of this case: defendant's plea of accord and satisfaction as a bar to plaintiff's action. His judgment at the March Term 1957 was not a final judgment disposing of the case and leaving nothing to be judicially determined between plaintiff and defendant in the trial court, because he left the matter open to be heard at a subsequent term as to whether the defendant could show that he had fully performed the agreement. Until that was determined no final judgment on defendant's plea in bar of accord and satisfaction could be rendered. His judgment entered at the March Term 1957 was interlocutory, because it was a judgment made during the pendency of the plea in bar of accord and satisfaction, which did not dispose of the plea, but left it for further action by the trial court in order to hear and determine such plea by a final judgment. Veazey v. City of Durham, 231 N.C. 357, 57 S.E.2d 377, 381, where this subject is fully discussed with citation of authority. In that case Ervin, J., said for the Court. "An appeal lies to the Supreme Court from a final judgment of the Superior Court. Citing authority. An appeal does not lie to the Supreme Court from an interlocutory order of the Superior Court, unless such order affects some substantial right claimed by the appellant and will work an injury to him if not corrected before an appeal from the final judgment." The exception has no application here. "As a rule orders and judgments which are not final in their nature, but leave something more to be done with the case, are not immediately reviewable. The remedy is to note an exception at the time, to be considered on appeal from the final judgment." McIntosh, N.C. Practice and Procedure, Second Ed., Vol. 2, p. 207.

The appeal, or attempted appeal, by plaintiff to the Supreme Court from the nonappealable interlocutory judgment rendered by Judge Moore at the March Term 1957 was a nullity, and did not deprive the Superior Court of Wayne County of jurisdiction at a subsequent term to hear evidence on defendant's plea in bar of accord and satisfaction as to the full performance of the agreement by defendant, and then to enter final judgment as to such plea in bar. Cox v. Cox, 246 N.C. 528, 98 S.E.2d 879. Plaintiff's assignment of error No. 32 is overruled.

The decisions cited by plaintiff in her brief, wherein the lower court became functus officio pending appeal, are readily distinguishable.

Plaintiff assigns as error Judge Moore's finding of fact that the defendant himself furnished $70,000 for the construction of what is known as the Colonial Store on John Street, and that he furnished a considerable portion of the $130,000 used in the enlargement and modernization of the building at 128, 130 and 132 North Center Street on the ground that such finding of fact is not supported by the evidence. She further assigns as error the judge's conclusion of law based there on that the monies advanced and expended by defendant and his claim to an interest in real estate constitutes a sufficient consideration to support the agreement of 1 May 1954. Plaintiff further assigns as error that the judge found as a fact that all matters in controversy between the plaintiff and the defendant were settled as of 1 May 1954, which contract was partly in writing and partly by parol, and also assigns as error the judge's finding of fact that the defendant has complied with the terms of the agreement in all respects. Plaintiff contends in his brief that "the findings of fact are not based upon the greater weight of the evidence," and that the accord and satisfaction here is not based upon any consideration, and has not been performed by defendant. Suffice it to say that the above findings of fact are supported by competent evidence, and are conclusive on appeal, and Judge Moore's finding of fact supports his conclusion of law that there was a consideration for the accord and satisfaction. Reid v. Johnston, 241 N.C. 201, 85 S.E.2d 114; State Trust Co. v. M. & J. Finance Corp., 238 N.C. 478, 78 S.E.2d 327; Fish v. Hanson, 223 N.C. 143, 25 S.E.2d 461. "Any new consideration, though insignificant or technical merely, is sufficient consideration for a contract of accord and satisfaction, provided it is valuable." 1 Am.Jur., Accord and Satisfaction, p. 236. "The consideration may present itself in any of numerous different shapes or guises, but in some form or other it must be present—there must be either some advantage, or presumed or assumed advantage, accruing to party who yields his claim, or some detriment to the other party. This is all that the law requires by way of consideration * * *." 1 C.J.S. Accord and Satisfaction § 4. Since the agreement of 1 May 1954 entitles plaintiff to receive a one-half undivided interest in the property known as No. 130-132 East Center Street, North, in Goldsboro, free from the interest defendant has in it for furnishing a considerable portion of the $130,000 used in the enlargement and modernization of the building at 128, 130 and 132 East Center Street, North, in Goldsboro, that alone without considering the other evidence, supports the agreement for the accord by a valuable consideration. These assignments of error are overruled.

Plaintiff assigns as error No. 2, that the Judge presiding at the February Term 1957 of Wayne County Superior Court refused her motion to make Carey K. Bizzell and wife, Louise B. Stengel and husband, and defendant's wife parties to the action. Plaintiff contends this was error, for the reason that their title to real estate was being attacked in the action. Judge Moore, during the hearing of defendant's plea of accord and satisfaction in bar of plaintiff's action, told plaintiff's then lawyer, Mr. Keel, "I am not passing on the title." Whether these persons should be made parties, if defendant's plea in bar of accord and satisfaction had been overruled, is not before us for decision. Certainly, the failure to make these persons parties is not prejudicial to plaintiff, and they are not necessary parties, in the determination of defendant's plea in bar of accord and satisfaction. This assignment of error is overruled.

The plaintiff assigns as error No. 1 the denial of her motion to strike certain parts of defendant's answer and cross-action. These are allegations, which in a large measure state facts not relevant to a hearing and determination of defendant's plea in bar of accord and satisfaction. Plaintiff has not shown that she was prejudiced by the refusal to strike these allegations so far as this appeal is concerned, and such assignment of error is overruled.

Plaintiff has numerous assignments of error as to the admission and exclusion of evidence over her objection and exception. Judge Moore allowed counsel on both sides wide latitude in the offering of evidence. When the parties waived a jury trial, Judge Moore occupied a dual position: he was the judge required to lay down correctly the guiding principles of law, and he was also the tribunal compelled to find the facts. In such a trial the rules of evidence as to the admission and exclusion of evidence are not so strictly enforced as in a jury trial. Reid v. Johnston, supra; Board of Managers, etc., v. City of Wilmington, 237 N.C. 179, 74 S.E. 2d 749; Cameron v. Cameron, 232 N.C. 686, 61 S.E.2d 913; McIntosh, N.C. Practice and Procedure, Second Ed., Vol. I, p. 759; 89 C.J.S. Trial § 589.

In Ann.Cas.1917C, at page 660 et seq., there is a note entitled "Effect of Admission of Incompetent Evidence in Trial before Court without Jury," where the cases are collected from a large number of states and from the Federal courts. In this note it is stated: "The general rule deducible from the cases appears to be that where a case has been tried before the court without a jury the admission of incompetent evidence is ordinarily deemed to have been harmless unless it affirmatively appears that the action of the court was influenced thereby. In other words, it is presumed that incompetent evidence was disregarded by the court in making up its decision." In support of the text decisions are cited from 23 States, the Federal courts, and the District of Columbia. In the same note it is said: "In reviewing a trial before the court without a jury it will be presumed that incompetent evidence was disregarded and the issue determined only from a consideration of competent evidence, and accordingly the admission of the incompetent evidence does not constitute reversible error." To support the text cases are cited from 22 States and cases from the Federal courts. In the note it is also said: "In a trial before the court without a jury if there is sufficient competent evidence supporting the judgment or finding, the admission of incompetent evidence does not constitute reversible error." Cases are cited in support of the text from 32 States, and cases from the Federal courts. These statements are subject to qualifications, which are not applicable to the instant case. See 53 Am.Jur., Trial, Sec. 1125, and also Birmingham v. State, 228 Wis. 448, 279 N.W. 15, 116 A.L.R. 554, and annotation to that case in A.L.R. as to the reception of incompetent evidence in criminal cases tried by court without a jury. In this annotation it is said there is a presumption in the Federal courts and in several state courts that where the court sits without a jury in a criminal prosecution, it acts only on the basis of proper evidence, and the cases are cited.

In 89 C.J.S. Trial § 589, p. 374, it is written:

"Since the rules of exclusion in the law of evidence as applied in a court of law are largely a result of the jury system, the purpose of which is to keep from the jury all irrelevant and collateral matters which might tend to confuse them or mislead them from a consideration of the real question involved, when an action is to the court sitting without a jury the rules of exclusion are less strictly enforced, the assumption being that the court will not be confused or misled by that which is irrelevant and inconclusive."

The learned trial judge was well able to weigh the evidence, and to disregard the incompetent evidence. There is nothing in the record to show that, if incompetent evidence were admitted, it influenced his findings of fact, and his in-interlocutory and final judgments in any way. In the record there is competent evidence to support his findings of fact, and such findings of fact are sufficient to support his conclusions of law and his interlocutory and final judgments based thereon. Reid v. Johnston, supra; Woody v. Barnett, 239 N.C. 420, 79 S.E.2d 789. In addition, from the record before us there is a rebuttable presumption that Judge Moore disregarded any incompetent evidence, if there were such, and made his findings of fact and rendered his interlocutory and final judgments on competent evidence, and there is nothing in the record to rebut such presumption. All assignments of error as to the admission and exclusion of evidence have been examined, and are overruled.

All plaintiff's assignments of error have received proper consideration by the court, and all overruled.

On appeal error will not be presumed. Beaman v. Southern Ry. Co. 238 N.C. 418, 78 S.E.2d 182. Technical error is not sufficient. The burden is on the appellant to show prejudicial error amounting to the denial of some substantial right. Johnson v. Heath, 240 N.C. 255, 81 S.E. 657; Beaman v. Southern Ry. Co., supra. This plaintiff has not done.

The clerical error in the final judgment, where the word defendant is used instead of plaintiff, as set forth in the statement of facts, will be corrected by the Wayne County Superior Court, when this opinion is certified down.

The interlocutory and final judgments entered below are

Affirmed.