{
  "id": 8553408,
  "name": "HARRY SCHAFRAN v. A & H CLEANERS, INC.",
  "name_abbreviation": "Schafran v. A & H Cleaners, Inc.",
  "decision_date": "1973-09-12",
  "docket_number": "No. 7311SC481",
  "first_page": "365",
  "last_page": "368",
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    "name": "North Carolina Court of Appeals"
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  "last_updated": "2023-07-14T21:32:34.966448+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Chief Judge Brock and Judge Baley concur."
    ],
    "parties": [
      "HARRY SCHAFRAN v. A & H CLEANERS, INC."
    ],
    "opinions": [
      {
        "text": "BRITT, Judge.\nDefendant assigns as error the failure of the court to allow his motions for nonsuit interposed at the conclusion of plaintiff\u2019s evidence and renewed at the close of all the evidence. This assignment has no merit.\nUnder the new Rules of Civil Procedure, the term \u201cnon-suit\u201d has been.eliminated in civil actions. In nonj\u00fary trials, the former motion for nonsuit has been replaced by the motion for a dismissal. G.S. 1A-1, Rule 41(b). Substantially the same question is presented by the present motion as was by the former and in order to consider this appeal on its merits, we will treat the motion for nonsuit as a motion for dismissal. .\nIn Knitting, Inc. v. Yarn Co., 11 N.C. App. 162, 163, 180 S.E. 2d 611, 612 (1971), this court said: \u201cIn ruling on a motion to dismiss under Rule 41 (b), applicable only \u2018in an action tried by the court without a jury,\u2019 the court must pass upon whether the evidence is sufficient as a matter of law to permit a recovery; and, if so, must pass upon the weight and credibility of the evidence upon which the plaintiff must rely in order to recover. Bryant v. Kelly, 10 N.C. App. 208, 178 S.E. 2d 113 (1970).\u201d\nAt the trial of the instant case, the alleged loans made by plaintiff to defendant were represented by four exhibits introduced by plaintiff. Exhibit 1 was a check for $5,000, drawn by plaintiff on Southern National Bank, Lillington, N. C., dated 26 March 1968, payable to defendant. Exhibit 2 was a check for $5,342.50, drawn by plaintiff on said bank, dated 7 May 1970, payable to the bank \u201cFor A & H Cleaners Note #10896, Prin. 5,300, Int. 42.50.\u201d Exhibit 3 was a check for $4,746.52, drawn by plaintiff on said bank, dated 11 November 1967, payable to Albert Coates, Inc.; plaintiff testified this check was for the purchase price of a station wagon which plaintiff bought for defendant. Exhibit 4 was a check for $4,000, drawn by plaintiff on the National Bank of Sanford, dated 30 March 1967, payable to defendant. Plaintiff\u2019s Exhibit 5 was Southern National Bank- of North Carolina note #10896, referred to in Exhibit 2, said note bearing date of 3 January 1970, in amount of $25,562,50, with defendant as maker, showing a balance of $5,300/and assignment to plaintiff dated 7 May 1970.\nIn its judgment, the trial court found as a fact that plaintiff made, to or for the benefit of defendant loans or advancements in the amounts set forth in plaintiff\u2019s Exhibits 1, 2, 3 and 4, and on or about the dates specified therein. The court further found that plaintiff failed to show that the loans or advancements represented by Exhibits 2 and 3 are due plaintiff. The court found that plaintiff had carried the burden of proving the indebtedness totaling $9,000 represented by Exhibits 1 and 4 and rendered judgment for that amount.\nWe hold that the court correctly overruled defendant\u2019s motion for dismissal and that the facts found are supported by competent evidence and are sufficient to support the judgment.\nDefendant assigns as error the admission into evidence of plaintiff\u2019s Exhibit 6 for illustrative purposes. This assignment has no merit.\nPlaintiff called as a witness David Matthews, a certified public accountant, who gave testimony regarding information obtained by him pursuant to a study of financial records of plaintiff and defendant. Plaintiff\u2019s Exhibit 6 was a two-page, eight-column memorandum prepared by the witness setting forth information which the witness considered a significant summary of his findings. The witness gave oral testimony with respect to the information set forth in the exhibit. On objection by defendant, the court refused to admit the exhibit as substantive evidence but admitted it to illustrate the testimony of the witness.\nAssuming, arguendo, that the exhibit was not competent for any purpose, we do not think its admission into evidence would entitle defendant to a new trial. In a trial before the judge without a jury, the ordinary rules as to the competency of evidence which are applicable in a jury trial are to some extent relaxed, since the judge with knowledge of the law is able to eliminate incompetent testimony; if incompetent evidence is admitted, the presumption arises that it was disregarded and did not influence the judge\u2019s findings. Construction Co. v. Crain and Denbo, Inc., 256 N.C. 110, 123 S.E. 2d 590 (1962); Trust Co. v. Wilder, 255 N.C. 114, 120 S.E. 2d 404 (1961); Construction Company v. Housing Authority, 1 N.C. App. 181, 160 S.E. 2d 542 (1968). There was ample competent evidence to support the court\u2019s findings and conclusions and there is no indication that the court was influenced by Exhibit 6. The assignment of error is overruled.\nWe have considered the other assignments of error brought forward and argued in defendant\u2019s brief but find them to be without merit and they too are overruled.\nThe judgment appealed from is\nAffirmed.\nChief Judge Brock and Judge Baley concur.",
        "type": "majority",
        "author": "BRITT, Judge."
      }
    ],
    "attorneys": [
      "Brycm, Jones, Johnson, Hunter & Greene by James M. Johnson and Woodall & McCormick by Edward H. McCormick for plaintiff appellee.",
      "Pearson, Malone, Johnson & DeJarm\u00f3n by W. G. Pearson II and C. C. Malone, Jr., for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "HARRY SCHAFRAN v. A & H CLEANERS, INC.\nNo. 7311SC481\n(Filed 12 September 1973)\n1. Bills and Notes \u00a7 20\u2014 action to recover loans \u2014 sufficiency of evidence and findings\nIn an action to recover for loans allegedly made by plaintiff to defendant, the trial court\u2019s findings were supported by competent evidence and were sufficient to support the court\u2019s judgment granting plaintiff recovery upon two of the loans for which he sued.\n2. Evidence \u00a7 57 \u2014 accountant\u2019s summary of findings \u2014 admission for illustration \u2014 harmless error\nIn an action to recover for loans allegedly made by plaintiff to defendant, the admission for illustrative purposes of a CPA\u2019s memorandum summarizing his findings in a study of the financial records of plaintiff and defendant, if erroneous, was not prejudicial to defendant in this trial before a judge without a jury, since it is presumed that the judge disregarded any incompetent evidence that may have been admitted.\nAppeal by defendant from Braswell, Judge, 11 December 1972 Civil Session of Harnett Superior Court.\nPlaintiff instituted this action to recover certain sums of money allegedly owing him by defendant. In his complaint, plaintiff set forth two causes of action, alleging that defendant owed him (1) $24,000, representing 24 months salary at $1,000 per month for serving as an officer of defendant, and (2) $19,046.52 for loans made by plaintiff to defendant. In its answer defendant denied owing plaintiff anything.\nJury trial was waived. Following a trial at which both parties introduced evidence, the court entered judgment setting forth findings of fact and conclusions of law determining that plaintiff\u2019s first cause of action should be dismissed with prejudice but that plaintiff is entitled to recover $9,000 plus interest and costs on his second, cause of action. Defendant appealed.\nBrycm, Jones, Johnson, Hunter & Greene by James M. Johnson and Woodall & McCormick by Edward H. McCormick for plaintiff appellee.\nPearson, Malone, Johnson & DeJarm\u00f3n by W. G. Pearson II and C. C. Malone, Jr., for defendant appellant."
  },
  "file_name": "0365-01",
  "first_page_order": 389,
  "last_page_order": 392
}