H. F. MITCHELL CONSTRUCTION COMPANY v. THE ORANGE COUNTY BOARD OF EDUCATION, 262 N.C. 295

RodmaN, J. Defendant assigns as error the refusal to allow its motion to nonsuit. It does not except to the findings of fact. If plaintiff offered competent evidence on which the court could find that rock had been excavated, as required by the contract, the motion to nonsuit was properly overruled. This is true even though the record also contains incompetent evidence admitted over defendant’s objections. Reverie Lingerie, Inc. v. McCain, 258 N.C. 353, 128 S.E. 2d 835; In re Simmons, 256 N.C. 184, 123 S.E. 2d 614; Insurance Company v. Shaffer, 250 N.C. 45, 108 S.E. 2d 49; Bradsher v.

Morton, 249 N.C. 236, 106 S.E. 2d 217; Bizzell v. Bizzell, 247 N.C. 590, 101 S.E. 2d 668. Winters testified that he actually excavated 481 cubic yards of rock. This testimony was not only competent, it was admitted without objection. His testimony provides full support for the court’s findings. The motion to nonsuit was properly overruled.

Accepting as correct defendant’s contention that the judgment rendered in Winters’ suit against Construction Company was neither an estoppel, nor evidence against Board of Education that rock had been excavated, it does not follow that the defendant has been prejudiced by the admission of the judgment rendered in that action. As noted, Winters’ testimony in this action would suffice to support a finding that 481 cubic yards of rock were excavated. Defendant was not prejudiced by reducing the quantity excavated from 481 to 227 cubic yards and its liability from $7,215.00 to $3,405.00.

Although plaintiff asserted he was entitled to recover the costs and expenses incurred in defending the Winters’ suit, the court held otherwise. Appellant, to succeed, must carry the burden, not only to show error, “but to show that if the error had not occurred there is a reasonable probability that the result of the trial would have been favorable to him.” Mayberry v. Coach Lines, 260 N.C. 126, 131 S.E. 2d 671. Defendant’s plea of payment of that part of plaintiff’s claim not related to excavation was properly rejected. Admittedly, that debt was due on June 30, 1961.

On that date, it amounted to $16,435.37, composed of $15,024.40 principal, and $1,410.47 interest accrued under the deposit agreement. Interest at 6 per cent, the legal rate, G.S. 24-1, accrued from June 30, 1961, when the debt was due, G.S. 24-5, Hood v. Smith, 226 N.C. 573, 39 S.E. 2d 604. Mathematical computation shows that the check for $16,817.87, tendered on March 9, 1962, was not sufficient to pay the amount admittedly owing on June 30, 1961, with the interest from that date to the date of tender. Plaintiff was, of course, not required to accept less than the sum owing on the date the tender was made.

Ingold v. Assurance Company, 230 N.C. 142, 52 S.E. 2d 366. No error.