Petroleum Tank Service, Inc. v. Fortner

CAMPBELL, Judge. The defendant was not represented by counsel before the referee. Defendant’s first assignment of error is directed at the finding of the trial judge that the defendant was indebted to the plaintiff in the amount of $5,151.00 for advances made from 10 March 1967 to 9 June 1967. Where a jury trial is waived, the court’s findings of fact are conclusive if supported by any competent evidence, even though there is evidence contra, and a judgment supported by such findings will be affirmed. Piping, Inc. v. Indemnity Co., 9 N.C. App. 561, 176 S.E. 2d 835 (1970); Goldman v. Parkland, 7 N.C. App. 400, 173 S.E. 2d 15 (1970). We are of the opinion that the testimony given by J. T. Hendrix, the auditor selected by the referee to audit the books of the plaintiff, provides sufficient evidence to sustain the findings of fact. This testimony, in part, is as follows (as summarized in the record) : “Mr. Hendrix then traced the contract amounts into the Petroleum Tank Service cash journal and found them to be in agreement with the contract figures stated. For the payroll, Hendrix added all payroll sheets for both jobs and cross-checked them and traced these amounts to disbursements. [95] Hendrix also made an audit with regard to advances made to Mr. Fortner by Petroleum Tank Service and substantiated $5,150.00 in disbursements to Mr. Fortner, all endorsed by Mr. Fortner in the period of March, 1967, through June, 1967. Included in this amount was a check for $376.00 which was actually disbursed in September of 1967. These checks were not entered as salary. All the checks were for round figures, $100, $400, $300, except for the $376.00 check, previously mentioned. During the subject period Mr. Fortner was' receiving approximately $225.00 per week in gross salary which salary was included in the audit as an expense item, $900.00 having been entered on the Greenville, North Carolina, job. There was $450.00 entered on the Cutler, Maine, Job and eight weeks of salary paid by Midwest Construction Company. »l* Í* ‡ There was nothing in the books and records to indicate that any of the sums paid to Fortner went to any other employee on any other job or to reimburse any travel expenses Fortner had while soliciting work for this company. With respect to the questions asked of me by Mr. Fortner about whether some of the checks about which I have testified had been for the purpose of reimbursement, I would like to say that I went to these checks which were claimed as advances. Now there were, I know at that time other checks which were written to Mr. Fortner which I did not vouch and which had been entered, I recall from memory, as reimbursement for expenses. As I stated before I was told only to go along the line and validate the $5,150.00 which I did, but this does not mean that these were the only checks written to Mr. Fortner during the period involved. ‡ ‡ ... I also have on there that the checks were written for Melvin Fortner and the checks were signed. I did not find that any portion of this was advances to employees. ...” [96] At one point during the hearing, in referring to the checks written to Mr. Fortner, Mr. Hendrix stated that “ . . . These checks were claimed by Petroleum Tank Service, whose records he went over, to be advances to Mr. Fortner . ” While this testimony is hearsay, no objection was made to its admission, thus it may be considered with the other evidence and given any evidentiary value which it may possess. State v. Fuqua, 234 N.C. 168, 66 S.E. 2d 667 (1951) ; Lambros v. Zrakas, 234 N.C. 287, 66 S.E. 2d 895 (1951). Defendant’s only other assignment of error is also directed at portions of the trial judge’s findings of fact. We have examined the record and are of the opinion that the evidence is sufficient to support all of the findings of fact and that the findings of fact support the conclusions of law. Affirmed. Judges Britt and Graham concur.