Dealers Specialties, Inc. v. Neighborhood Housing Services, Inc.

283 S.E.2d 155, 54 N.C. App. 46, 1981 N.C. App. LEXIS 2811
CourtCourt of Appeals of North Carolina
DecidedOctober 6, 1981
DocketNo. 805DC1167
StatusPublished
Cited by1 cases

This text of 283 S.E.2d 155 (Dealers Specialties, Inc. v. Neighborhood Housing Services, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dealers Specialties, Inc. v. Neighborhood Housing Services, Inc., 283 S.E.2d 155, 54 N.C. App. 46, 1981 N.C. App. LEXIS 2811 (N.C. Ct. App. 1981).

Opinions

ARNOLD, Judge.

Defendant-appellant has brought forward all six of his assignments of error on appeal. Plaintiff-appellee has failed to respond to defendant’s brief.

Defendant first assigns error to the trial court’s denial of its motion for summary judgment “on the grounds that there was no genuine issue of fact that Plaintiff’s claim was upon a promise to answer the debt of another which was not in writing and upon the grounds that plaintiff’s claim was based upon the sale of goods for the price of more than $500 which was not evidenced by any writing signed by the party to be charged.” A motion for summary judgment must be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” G.S. 1A-1, Rule 56(c). The burden is on the moving party to establish the lack of a triable issue of fact, and the motion must be considered in the light most favorable to the party opposing summary judgment. Baumann v. Smith, 41 N.C. App. 223, 254 S.E. 2d 627, rev’d on other grounds, 298 N.C. 778, 260 S.E. 2d 626 (1979). We conclude that defendant has not met this burden. The bare denial of plaintiffs allegations and the raising of G.S. 25-2-201 and 22-1 do not prove plaintiff’s claims to be non-existent or unfounded. Plaintiff clearly alleged that [50]*50defendant’s agent unconditionally promised to pay plaintiff for materials sold to Autry. Plaintiffs answers to interrogatories also support a promise to pay. The Statute of Frauds, G.S. 22-1, requires that a promise to answer for the debt of another be in writing before any action may be brought against such promissor. Plaintiffs allegations and answers to interrogatories clearly show that there is a disputed issue of fact as to whether defendant’s promise to pay falls within the purview of this statute.

There is also a disputed issue of fact as to whether the alleged agreement is unenforceable against defendant pursuant to G.S. 25-2-201. Plaintiff, in its complaint, alleged that in consideration of the unconditional promise to pay made by defendant’s agent, the goods were sold and delivered to Autry. This allegation raises the specific issue as to whether the agreement falls under G.S. 25-2-201(3)(c). This section of the statute provides that an oral contract for the sale of goods for $500 or more is enforceable “with respect to goods for which payment has been made and accepted or which have been received and accepted.”

The North Carolina courts have consistently held that their duty in hearing a motion for summary judgment is not to decide an issue of fact nor to test the sufficiency of the evidence. The trial court, therefore, properly denied defendant’s motion for summary judgment.

Defendant next assigns error to the admission of the testimony of Harry Rimel, president and general manager of plaintiff, on the basis that his testimony constituted hearsay. Rimel testified that in September, 1978, Lonnie Autry came to plaintiff’s store and indicated he was working on a job for defendant and requested to buy building materials on account until he was paid for the job. Rimel refused to sell him any materials except on a cash basis. Rimel testified that about two days later he received a call from Mr. Ron Conrady. Following his conversation with Conrady, he later telephoned defendant and asked the woman who answered if he could speak with Conrady. Rimel then asked her if Conrady was “in charge of a job on Perry Street under Mr. Lonnie Autry as a contractor” and she responded that he was. Rimel then spoke with Conrady. On recall, Rimel was allowed to testify as to his initial telephone conversation with Conrady. He testified that several days after he refused to sell [51]*51Autry building materials on credit, Conrady telephoned him and identified himself as Assistant Director of Neighborhood Housing Services of Wilmington. Conrady told Rimel that defendant assisted homeowners in building and remodeling. He then asked Rimel to extend credit to Autry because Autry was remodeling a house for one of defendant’s clients. Rimel further testified:

Mr. Conrady told me that he would insure payment; that payment would not be made, that the final draw on the job, Sixth Street, could not be made by Mr. Autry until I had been paid and the check would be issued to me and Mr. Autry jointly; and that the lien waivers would have to be signed. He could (sic) make his final draw until I had been paid. I agreed to let Mr. Autry have the goods. . . .
The check would be joint with Mr. Autry. Based on that assurance, I extended the credit.

Defendant contends that this testimony is in direct conflict with the general rule that a declaration or admission of an alleged agent, while competent as against the agent, ordinarily is incompetent as against the principal when the declaration or admission of the agent is not within the scope of the agent’s authority. 10 Strong’s N.C. Index 3d, Principal and Agent, § 4.2, pp. 336-37. Defendant points out that the director of defendant testified that Conrady had no authority to contract with anyone. Defendant, however, has failed to consider the exceptions to this general rule.

[0]rdinarily the extra-judicial statement or declaration of the alleged agent may not be given in evidence, unless (1) the fact of agency appears from other evidence, and also unless it be made to appear by other evidence that the making of such statement or declaration was (2) within the authority of the agent or, (3) as to persons dealing with the agent, within the apparent authority of the agent.

Commercial Solvents v. Johnson, 235 N.C. 237, 241, 69 S.E. 2d 716, 719 (1952). In the case sub judice, Henry Brown, defendant’s director, testified that in September 1978 Conrady was employed by defendant as Assistant Director Rehabilitation Specialist. He further testified that Conrady’s duties involved making initial in[52]*52spections on properties to be rehabilitated and dealing with the general contractor and homeowner. Brown stated, “Mr. Conrady would make me aware of any problem and if there was anything that I could do or assist in getting that accomplished and then he and/or I would try to straighten the problem out .... When someone calls the office and asks to speak to the person who was in charge of coordinating the job or overseeing the job, I put them in contact with myself or Mr. Conrady.” This testimony by defendant’s director establishes the existence of a principal-agent relationship between defendant and Conrady. It further supports the trial court’s finding that Conrady had apparent authority to bind defendant contractually as alleged. The North Carolina Supreme Court has noted that the apparent scope ot an agent’s authority

“is that authority which the principal has held the agent out as possessing or which he has permitted the agent to represent that he possesses; however, the determination of a principal’s liability in any particular case must be determined by what authority the third person in the exercise of reasonable care was justified in believing that the principal had, under the circumstances, conferred upon the agent. [Citations omitted.]”

Zimmerman v. Hogg & Allen, 286 N.C. 24, 31, 209 S.E. 2d 795, 799 (1974). Plaintiff, in the case before us, acted reasonably in believing that Conrady as Assistant Director had the authority to contract with it.

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Cite This Page — Counsel Stack

Bluebook (online)
283 S.E.2d 155, 54 N.C. App. 46, 1981 N.C. App. LEXIS 2811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dealers-specialties-inc-v-neighborhood-housing-services-inc-ncctapp-1981.