Hanover Company v. Twisdale , 42 N.C. App. 472 ( 1979 )

256 S.E.2d 840 (1979) 42 N.C. App. 472

HANOVER COMPANY
v.
John M. TWISDALE, Twisdale Mfg. Co., Inc., M. C. Brown, Trustee, and North Carolina National Bank.

No. 7813SC970.

Court of Appeals of North Carolina.

July 31, 1979.

Murchison, Fox & Newton by Frank B. Gibson, Jr. and William R. Shell, Wilmington, for defendants-appellants.

Stevens, McGhee, Morgan & Lennon by Karl W. McGhee and Henry V. Ward, Jr., Wilmington, for plaintiff-appellee.

MORRIS, Chief Judge.

Defendants first contend that the trial court erred in allowing witnesses for the plaintiff to testify about conversations with U. J. LeBlanc, an agent of defendants. The witnesses testified that negotiations leading to the contract were conducted between them and LeBlanc and that LeBlanc was present on the job site as defendants' agent. The witnesses testified generally that LeBlanc directed the project and authorized frequent changes from the written contract. For example, the superintendent for plaintiff testified: "Additional equipment other than that which was contemplated was used on this project. Mr. LeBlanc authorized this equipment. It was necessary for extra work that had to be done over and above the contract." Defendants contend that this and similar testimony violates G.S. 8-51 since LeBlanc was dead at the time of the trial. We disagree.

The challenged testimony was not admitted in violation of G.S. 8-51. That statute prohibits testimony from witnesses in certain circumstances "against the executor, administrator or survivor of a deceased person. . .." A witness is not regarded as testifying "against" the representative unless such representative is a party to the litigation. 1 Stansbury, N.C. Evidence, (Brandis Rev.1973), § 71, p. 217. Here, the challenged testimony was obviously not against the representative of the deceased person. Moreover, our Supreme Court has held that G.S. 8-51 does not render an interested witness incompetent to testify to a transaction between himself and a deceased agent of his opponent. Bailey v. Westmoreland, 251 N.C. 843, 112 S.E.2d 517 (1960).

Defendants also contend that the testimony of the witnesses about conversations with LeBlanc should have been excluded on the basis of this statement of our Supreme Court in Commercial Solvents v. Johnson, 235 N.C. 237, 241, 69 S.E.2d 716, 719 (1952):

While proof of agency, as well as its nature and extent, may be made by the direct testimony of the alleged agent. . . nevertheless it is well established that, as against the principal, evidence of declarations or statements of an alleged agent made out of court is not admissible to prove the fact of agency or its nature and extent. . . .

However, the stated rule is subject to several exceptions, one of which is clearly applicable to the facts disclosed by this record:

And in applying this rule, ordinarily the extrajudicial statement or declaration of the alleged agent may not be given in evidence, unless (1) the fact of agency appears from other evidence, and also unless it be made to appear by other evidence that the making of such statement or declaration was (2) within the authority of the agent or, (3) as to persons dealing with the agent, within the apparent authority of the agent. Commercial Solvents v. Johnson, supra, 235 N.C. 237 at 241, 69 S.E.2d 716 at 719.

Here, in his pleadings and testimony, the individual defendant admitted LeBlanc's agency. Moreover, LeBlanc's apparent authority was indicated by the testimony of several witnesses.

Defendants next contend that the trial court committed error in allowing plaintiff to present evidence aliunde the written contract. The defendants cite the general rule in North Carolina prohibiting parol or extrinsic evidence to contradict the terms of a written contract which has been introduced into evidence. Defendants cite various parts of the testimony in support of their contention that the trial judge allowed testimony in contravention of the parol evidence rule. Suffice it to say that we have reviewed the testimony carefully and conclude that the challenged testimony dealt with alleged modifications or additions made subsequent to the execution of the written contract. "That the [parol evidence] rule has no application to subsequent agreements of any character, whether oral or written, is settled in a long line of cases." 2 Stansbury, N.C. Evidence (Brandis Rev.1973) § 258, p. 256 and cases cited therein.

Defendants next maintain that the trial court committed error in excluding testimony of the individual defendant regarding the storage of steel at another site since the testimony was relevant as to the measure of damages suffered by the defendants as a result of the fact that the plaintiff allegedly failed to complete the contract as specified on time. Since the jury answered the fourth issue finding that plaintiff did not breach its contract with defendant, the assigned error would not be prejudicial to defendants. Where the rights of the parties are determined by the jury's answer to one of the issues, error, relating to another issue cannot be prejudicial. Superior Foods, Inc. v. Harris-Teeter, 24 N.C.App. 447, 210 S.E.2d 900 (1975). Moreover, the record does not show what the answer would have been. "Where the record shows exceptions to unanswered questions, without more, the exceptions will not be considered on appeal. We cannot assume that the answers would have been favorable to the [appellant]." In re Will of Wilder, 205 N.C. 431-432, 171 S.E. 611 (1933).

We have examined the defendants' remaining assignments of error and hold that they, too, are without merit.

In the trial below, we find

No error.

CLARK and ERWIN, JJ., concur.