Gainesville & Alachua County Hospital Ass'n v. Atlantic Coast Line Railway Co.

157 N.C. 460

• Court: Supreme Court of North Carolina
• Decided: December 20, 1911
• Status: Published

Opinion

“WalkeR, J.

An examination of tbe record in tbis case discloses tbe fact that every question now raised was presented in tbe former appeal and then decided by tbis Court. If it was material at tbe former bearing for the plaintiff to have established its incorporation, tbe nonsuit should have been sustained, and there is no less evidence of that fact now than there was then. But we concur with tbe judge, who presided at tbe trial, that tbe question of incorporation is not sufficiently raised by tbe pleadings, and, besides, if our former decision was correct, tbe appellant (railway company) dealt with tbe plaintiff as if it bad been duly incorporated and bad tbe capacity to enter into tbe contract, whether express or implied. Bank v. Duffy, 156 N. C., 83.

Tbe question as to tbe statute of frauds, and tbe remaining one as to tbe authority of H. 0. McArthur to act for tbe company in tbe particular matter, were both passed upon when tbe ease was here before. Tbe evidence is not substantially different from what it was in tbe former appeal. "We then held that it was sufficient for submission to tbe jury, and we must so decide now, as tbe same question cannot be raised by a second appeal, but it must be done by a petition to rehear tbe case, and for a reversal of our decision, if we were in error. Jones v. R. R., 131 N. C., 133; Wright v. R. R., 128 N. C., 17; Kramer v. R. R., ibid., 269; Holley v. Smith, 132 N. C., 36. Tbe motion to nonsuit is governed by tbe same rule. We do not mean to imply that our former rulings were erroneous, but simply that they cannot be reviewed in tbis way. There is no practical difference between tbis case and the one we formerly beard. Assuming that McArthur bad sufficient authority to represent defendant, which we formerly decided to exist, tbe ruling that tbe promise to pay tbe plaintiff its charges for medical and other services to Miss Hobbs, as an original one, is not affected by the statute of frauds, and, -therefore, is not required to be in writing, finds some support in two cases decided at this term, Peele v. Powell, 156 N. C., 553, and Whitehurst v. Padgett, ante, 424.

No error.