Dunn v. Brookshire

174 S.E.2d 294 (1970)

J. T. DUNN, t/a J. T. Dunn Heating Co.
v.
J. C. BROOKSHIRE.

No. 7026SC199.

Court of Appeals of North Carolina.

May 27, 1970.

Ray Rankin, Charlotte, for plaintiff appellee.

Kurtz & Ashendorf, by William H. Ashendorf, Charlotte, for defendant appellant.

VAUGHN, Judge.

Defendant's first assignment of error is that the trial judge committed error in his failure to set aside the verdict because plaintiff failed to present any probative or substantive evidence tending to show that the reasonable value of his services amounted to more than that already paid to the plaintiff and that the verdict was, therefore, contrary to the weight of the evidence. A motion to set aside the verdict is addressed to the sound discretion of the trial court, Watson v. Stallings, 270 N.C. 187, 154 S.E.2d 308, and the refusal to grant the motion is not appealable in the absence of manifest abuse of discretion. Williams v. Boulerice, 269 N.C. 499, 153 S.E.2d 95; 7 Strong, N.C. Index 2d, Trial, § 51, p. 369. No abuse of discretion appears from the record of this trial. Without a lengthy recital of the evidence, it suffices to say that the plaintiff presented evidence as to the amount of time spent on the job, materials used, incidental work done at the defendant's request and evidence as to the reasonable value of the materials and services for which he contends defendant agreed to pay. The plaintiff also offered a paperwriting which was read to the jury. It was a letter from D. A. Lamb of the Daughtry Sheet Metal Company, Charlotte, North Carolina, in which Lamb, upon inspection of the work performed by the plaintiff, estimated the value of the job at $19,140.00. This evidence was presented without objection, and defendant now contends that the paperwriting was inadmissible as not being properly authenticated and therefore of no probative value. When there is no objection to an offer of evidence or a motion to strike after its admission, any objection or exception is lost. Unless objection is made at the proper time, it is waived. Stansbury, North Carolina Evidence, § 27, p. 49. A rule of evidence not invoked is waived. Harriet Cotton Mills v. Local Union 578, 251 N.C. 218, 111 S.E. 2d 457, and cases cited. The credibility, probative force, and weight of the evidence is a matter for the jury. Queen City Coach Co. v. Lee, 218 N.C. 320, 11 S.E.2d 341.

The defendant also contends that the jury's answer to the two issues submitted constituted an inconsistent verdict. This contention is without merit. The verdict makes it clear that the jury believed the evidence of the plaintiff tending to show that the plaintiff had not been paid in full for his materials and labor and therefore returned a verdict in his favor upon the first issue. It is equally clear that the jury believed the evidence of defendant supporting a part of his claim, which was separate and distinct from plaintiff's claim. When the pleadings and evidence raise several issues, the submission of a single issue as to the amount each party is entitled to recover is not good practice. Yates v. Body Co., 258 N.C. 16, 128 S.E.2d 11. In this case, however, the parties stipulated as to the issues which the trial judge should submit to the jury, and defendant does not now complain of the number or form of the issues. Despite the shortcomings of the issues, his honor's charge clearly delineated the controversy and properly instructed the jury on the several claims. The jury's answers on the issues were entirely consistent.

Assignments of Error 4 and 5 are directed to portions of his honor's charge, the contention being that his honor, in recapitulating the evidence, used the figure $11,500.00 when in fact the figure $11,000.00 should have been used. The defendant did not suggest any correction to the court. The court specifically instructed the jury to use their own recollection of the evidence. These assignments of error are overruled. Holloway v. Medlin, 3 N.C.App. 89, 164 S.E.2d 69.

No error.

MALLARD, C. J., and MORRIS, J., concur.