Cobb v. Dibrell Bros.

207 N.C. 572

• Court: Supreme Court of North Carolina
• Decided: January 28, 1935
• Status: Published

Opinion

BbogdbN, J.

The chief questions of law presented for solution are as follows:

1. Was there any competent evidence of a valid contract of sale of the shares of stock in controversy to the plaintiff ?

2. Was such contract abandoned or relinquished?

3. Did the trial judge correctly instruct the jury?

It is familiar learning that offer and acceptance are the essential elements of a valid contract of sale. The offer must be complete, communicated and accepted in its exact terms. Rucker v. Sanders, 182 N. C., 607, 109 S. E., 857; Overall Co. v. Holmes, 186 N. C., 428, 119 S. E., 817; Gravel Co. v. Casualty Co., 191 N. C., 313, 131 S. E., 754; Dodds v. Trust Co., 205 N. C., 153, 170 S. E., 652.

Manifestly there was sufficient evidence of a valid contract of sale to be considered by a jury. Conceding that the defendant Dibrell Brothers thought at the time that they were dealing with the father, nevertheless his testimony was unequivocal that positive notice was given that he was dealing for his son, the plaintiff in this action. Moreover, a contract does not result from what either party thought about the transaction, but rather upon what both parties agreed. Brunhild v. Freeman, 77 N. C., 128; Building Co. v. Greensboro, 190 N. C., 501, 130 S. E., 200; McCain v. Ins. Co., 190 N. C., 549, 130 S. E., 186.

The defendant excepted to the introduction of a letter written by J. S. Cobb to the defendant Dibrell Brothers, dated 7 August, 1933, in which Cobb recites the agreement between the parties. Of course, this letter, perhajDS, contains certain assertions favorable to jffaintiff’s theory of the ease, but manifestly portions of the letter were competent as corroborating evidence. It is the duty of a party objecting to evidence which is competent for some purposes but not for all, to point the objection at the time it is taken and to request the court to properly restrict it. Barnhardt v. Smith, 86 N. C., 473; Smiley v. Pearce, 98 N. C., 185, 3 S. E., 631; Dunn v. Lumber Co., 172 N. C., 129, 90 S. E., 18; Singleton v. Roebuck, 178 N. C., 201, 100 S. E., 313.

There was no evidence that the contract had been abandoned in accordance with any of the recognized and accepted methods pointed out in Bixler v. Britton, 192 N. C., 199, 134 S. E., 488.

The defendant excepted to a certain instruction given the jury by the trial judge to the effect that an agent may bind his principal and the other contracting party without disclosing the fact of agency. This instruction was pertinent to a contention made by the appealing defendant that it was under the impression it was dealing with the father, J. S. Cobb, and not the plaintiff J. O. Cobb. The applicable principle of law was tersely stated in Williams v. Honeycutt, 176 N. C., 102, 96 S. E., 730, as follows: “The right of a principal to maintain an action to enforce a contract made by his agent in his own name without disclosing the name of the principal is well settled.”

There are other exceptions in the record, but the Court is of the opinion that none of them warrant the overthrow of the judgment.

Affirmed.