Kabatnik v. Westminster Co.

HILL, Judge. Defendant brings forth three assignments of error concerning his motion for directed verdict under Rule 50(a) of the North [760] Carolina Rules of Civil Procedure, admissibility of evidence, and instructions to the jury. We have examined each of the assignments and find no basis for reversal. The first question presented by this appeal is whether the trial court erred in denying defendant’s motion for directed verdict. Defendant contends he was entitled to judgment as a matter of law by reason of plaintiffs failure to prove breach of contract. The question raised by a directed verdict motion is whether the evidence is sufficient to go to the jury. Rappaport v. Days Inn, 296 N.C. 382, 250 S.E. 2d 245 (1979); Kelly v. Harvester Co., 278 N.C. 153, 179 S.E. 2d 396 (1971). In passing upon such a motion, the trial judge must consider the evidence in the light most favorable to the non-movant, resolving all conflicts and giving to him the benefit of every inference reasonably drawn in his favor. Rappaport v. Days Inn, supra; Summey v. Cauthen, 283 N.C. 640, 197 S.E. 2d 549 (1973). A directed verdict motion by defendant may be granted only if the evidence is insufficient as a matter of law to justify a verdict for plaintiff. Husketh v. Convenient Systems, 295 N.C. 459, 245 S.E. 2d 507 (1978). Applying this standard to the case under review, we find the trial judge properly submitted the breach of contract issue to the jury. The $7,700 amount in controversy is derived from the $7,700 paid by Simkins to plaintiff in satisfaction of plaintiffs counterclaim, as alleged in Simkins’ initial affirmative defense in the prior action. Defendant interprets this payment as an advancement by Simkins to plaintiff for which Simkins is entitled to reimbursement under the contract between plaintiff and defendant. However, the agreement in the prior action and the present contract, while similar, are not the same. “Work under the former was completed and the prior claim mature before work under the latter had even begun. The present claim did not mature until 1979, almost four years after the first claim.” Kabatnik v. Westminster Co., 63 N.C. App. 708, 712-13, 306 S.E. 2d 513, 516 (1983). The present contract made no reference to withholding by defendant. Plaintiff submitted evidence tending to show that he furnished all architectural services required under the present contract. It is well settled that the failure to pay the balance due on a contract for services constitutes a breach of contract. McGuire v. Sammonds, 247 N.C. 396, 100 S.E. 2d 829 (1957). Plain [761] tiffs evidence, taken in the light most favorable to him, would justify the jury in finding a breach of contract; consequently, the trial judge correctly submitted the issue to the jury. Defendant next contends that the trial court erred in admitting into evidence a pleading from the prior action which was later amended. In the prior action of Simkins v. Kabatnik, Simkins asserted an affirmative defense of payment to Kabatnik of $7,700 as complete accord and satisfaction of Kabatnik’s counterclaim. The affirmative defense, inconsistent with Simkins’ testimony in the present action that the $7,700 was an advance for which he should be reimbursed by Kabatnik, was later amended to say that the counterclaim had been satisfied by compensation paid by Westminster Company for the same services. While defendant asserts the view that a pleading is inadmissible when superseded by an amended pleading, withdrawn, or abandoned, the general rule is to regard them as affecting the weight, rather than the competency, of the statements, and hold that after making all due allowances there may remain a residuum of probative force in statements in abandoned or superseded pleadings, to the benefit of which the opposite party is entitled, in the absence of evidence that the pleading was unauthorized, or an affirmative showing that the party was without knowledge of the real facts when such pleading was prepared. 31A C.J.S., Evidence, § 304, p. 787. This the defendant has failed to show. In Morris v. Bogue Corporation, 194 N.C. 279, 139 S.E. 433 (1927), it was held that in a civil action to recover services rendered where an amendment to the complaint has been allowed and filed by the plaintiff, the allegations of the original complaint when contradictory to the plaintiffs position at trial are competent evidence when relevant. The affirmative defense, inconsistent with Simkins’ testimony, was competent, and defendant’s contention that its admission was prejudicial error is without merit. Defendant finally asserts that the trial court erred in its charge to the jury regarding the rights of Dr. Simkins. Simkins’ testimony attempted to interpret the amount he paid to plaintiff as an advancement by Simkins to plaintiff for which Simkins is [762] entitled to reimbursement under the contract between plaintiff and defendant. Regarding this matter, the trial judge instructed the jury as follows: [I]f the plaintiff has proved to you by the greater weight of the evidence that $7,700 paid by the doctor was in payment for work done and that it was not an advance on architectural fees, it would be your duty to answer this issue Yes in favor of the plaintiff. If, on the other hand, the plaintiff has failed to so prove, or if you are unable to say where the truth lies, it would be your duty to answer this issue No in favor of the defendant. We believe the trial judge’s instruction sufficiently stated the rights of defendant in regard to Simkins’ testimony. The instruction, read contextually as a whole, State v. Lee, 277 N.C. 205, 176 S.E. 2d 765 (1970), is correct. Defendant has failed to demonstrate prejudicial error. No error. Chief Judge VAUGHN and Judge Webb concur.