Hunsucker v. Corbitt

187 N.C. 496

Opinion

Clarkson, J.

Tbe defendant’s first grouping of assignments of error relates to exceptions 1 and 55. “Tbe court committed error in overruling tbe motion made by tbe defendant Corbitt Buggy Company for a judgment as of nonsuit, for that tbe plaintiffs’ alleged cause of action is barred by tbe three years statute of limitations, as appears from tbe pleadings, and for that tbe plaintiffs bad not paid tbe costs in a prior suit between tbe same parties upon tbe same alleged cause of action before bringing tbe present action.” “Tbe court charges you, if you believe all tbe evidence, you will answer that issue (4th issue) No.’ ” That' issue is as follows: “Is plaintiffs’ cause of action barred by tbe statute of limitations?”

These exceptions raise tbe plea of tbe statute of limitations. This defense, three years statute of limitations, was set up in tbe answer. If tbe position of defendant can be sustained, tbe plaintiffs cannot recover.

An action was brought by plaintiffs against R. J. Corbitt, individually, Corbitt Buggy Co. and tbe Hackett Motor Car Co. in tbe Superior Court of Pitt County on 13 March, 1917, and this action was nonsuited at tbe March Term, 1920, 'of Pitt County. Tbe present action was commenced 5 May, 1920, and tbe summons served on defendant Corbitt' Buggy Co. on 10 May, 1920.

C. S., 415, is as follows: “If an action is commenced within tbe time prescribed therefor, and tbe plaintiff is nonsuited, or a judgment therein reversed on appeal, or is arrested, tbe plaintiff or, if be dies and tbe cause of action survives, bis heir or representative may commence a new action within one year after such nonsuit, reversal, or arrest of judgment, if tbe costs in tbe original action have been paid by tbe plaintiff before tbe commencement of tbe new suit, unless tbe original suit was brought in forma pauperis

It was admitted that tbe costs in tbe original suit was not paid until 9 May, 1922, about two years after tbe institution of tbe second suit, but tbe second suit was brought within one year after nonsuit of tbe original suit. At tbe time tbe second suit was instituted more than three years bad elapsed since plaintiffs’ cause of action has accrued. It was necessary for plaintiffs, after tbe nonsuit in tbe first action, to bring their second action within one year. Under C. S., 415, supra, “if the costs in the original action have been paid by the plaintiff before the commencement of the new suit, unless the original suit was brought in forma pauperis.”

This cost must be'paid or some good cause shown. Plaintiffs contend that tbe testimony of R. T. Oox, one of plaintiffs, shows, and it is not denied, that he tried to pay the costs on several different occasions, and the clerk did not have the bill of cost made up. “That he went to Mr. Harrington (the clerk) and asked him if he had gotten the cost figured up yet. That he (Harrington) was busy at that time and that he said T will mail it to you,’ and that he (witness) said, ‘We will have to pay the cost before we can start a new suit, and Mr. Everett wants to start it now.’ He (Harrington) said, T will make the entry on it and you can mail me a check for it,’ and that he, the witness, left. That he was ready to pay it then; that he thinks that he had a blank check in his pocket; that as soon as he did call on him for it that he mailed him a check for it.” The clerk testified that Oox came to his office before the summons in the second suit was issued; “that at the time he did not have the cost figured up and that he fold him that if he would get it up and send him a statement he would pay .it.” The clerk further testified :

“Q. Mr. Harrington, at the time Mr. Oox tendered you -this cost, you considered it as good as paid at that time, and if there had been any demand made by anybody for the cost you would have paid it and called on him for it ? Answer: Oh, yes, I knew it was just as good as if I had it; all he wanted was the bill. . . . That "he knew that the cost from Cox Mfg. Co. or from A. G. Oox was absolutely good at any time.”

It is contended by plaintiff that he did all a reasonably prudent man could be expected to do; that he tried time and time again to get the bill of cost from the clerk and the delay was no fault of his but the clerk’s in .not making up and letting him have the bill of cost, which he went- to pay and tried to pay before the present suit was instituted and within the year, and he had assurance from the clerk, “I will make the entry on it and you can mail me a check for it.” That this was tantamount to payment. That it was the clerk’s fault and not his. We think there was no error in the charge. The facts in this case are different from Rankin v. Oates, 183 N. C., 517, relied on by defendant.

Succinctly the admitted testimony was: “That the clerk would figur.e the cost up and send him a statement and that he would pay it. . . . I. knew it was just as good as if I had it. All he wanted was the bill. . . . I will make the entry on it and you can mail me a check for it.”

The defendant’s second grouping of assignments of error relate to exceptions numbers 4 to 20, inclusive, and 22 to 40, inclusive, covering alleged errors committed by the. court in allowing the introduction of evidence on the part of appellant tending to show the agency of the witnesses, Carter and Teachy, by their declarations, and failing to show anywhere in the evidence that Carter and Teacby were authorized to make any such representations or to in anywise bind the appellant.

These assignments of* error raise the questions: How far an agent can bind his principal, and what evidence is sufficient to prove agency?

The evidence on the part of plaintiffs was that they first saw the Argo car advertised in the News and Observer; that they had some correspondence with Mr. Corbitt, of the Corbitt Buggy Co., the defendant in this action; that they received a catalogue and the following letter signed “Corbitt Buggy Co., R. J. Corbitt, V. P.” dated Henderson, N. C., 21 April, 1916. The letter is as follows:

“We have your esteemed favor of the 19th instant, and we are pleased to enclos'e herewith catalogue of the Argo automobiles.

“The terms are spot cash on these automobiles, and the list price of the runabout is $385, and it costs you $335; the list price of the touring car is $435, and it costs you $375; the list price of electric lights and electric starter is $60 extra, and they cost you $55 extra.

“We require each agent to sign a contract and put up a deposit of $125, and we give shim the exclusive right of selling Argo cars in the county in which he is located.

“This is a popular priced car and there are lots of them being sold. If you have never seen one of these cars, you can come up to Henderson and see them.

“Above prices are E. O. B. Jackson, Mich. We can deliver these cars from Henderson, but in that case you would have to pay the freight from Jackson, Mich., to Henderson, which would-be about $25, and you can drive through the country from Henderson to Winterville, or you can have them shipped in carload lots from Jackson, Mich.

“If you are interested we will have our representative, Mr. N. H. Carter, or M. W. Teachy call on you at once, or wé will be glad to have you come to Henderson.”

The letter was admissible. Edwards v. Erwin, 148 N. C., 430.

After having received the letter, two men called on plaintiff — -Teachy and Carter. They said they represented the Corbitt Buggy Co. “They said they were sent down to close the contract.” Then Teachy and Carter made in substance the representations, warranties and guaranties set forth in the complaint, and on these representations, etc., plaintiffs purchased the cars and signed the contract. The evidence was to the further effect that the cars would not run and in substance were-worthless and unfit for service. That the Corbitt Buggy Co. was notified of these defects. That parties representing themselves as coming from the defendant, Corbitt Buggy Co., came to try and work on the cars to overcome the various troubles.

Ve think these exceptions cannot be sustained. There was sufficient evidence introduced by plaintiff to lay the proper basis for its admission that Teachy and Carter were agents of defendant Corbitt Buggy Co. The facts and circumstances show some evidence aliunde than the declarations of the alleged agents.

“Admissions by agents, made while doing acts within the scope of the agency, and relating to the business in hand, are admissible against the principal when such admissions may be deemed a part of the res gestee, but such admissions are not admissible to prove the agency, the agency must be shown aliunde before the agent’s admissions will be received.” Lockhart’s Handbook on Evidence, sec. 154, citing: Williams v. Williamson, 28 N. C., 281; Munroe v. Stutts, 31 N. C., 49; Royal v. Sprinkle, 46 N. C., 505; Grandy v. Ferebee, 68 N. C., 356; Francis v. Edwards, 77 N. C., 271; Gilbert v. James, 86 N. C., 244; Johnson v. Prairie, 91 N. C., 159; Taylor v. Hunt, 118 N. C., 168; Summerrow v. Baruch, 128 N. C., 202; Daniel v. R. R., 136 N. C., 517. See, also, Morgan v. Benefit Society, 167 N. C., 266; Realty Co. v. Rumbough, 172 N. C., 747.

Ve think that the representations, etc., of Teachy and Carter were in the scope of their employment and binding on defendant. Powell v. Lumber Co., 168 N. C., 635; Lumber Co. v. Johnson, 177 N. C., 51; Furniture Co. v. Bussell, 171 N. C., 485; Strickland v. Kress, 183 N. C., 536; Fisher v. Lumber Co., 183 N. C., 490; Crutchfield v. Rowe, 184 N. C., 213; Beck v. Wilkins-Ricks Co., 186 N. C., 214.

Nash, J., in Hunter v. Jameson, 28 N. C., 255, says: “They establish conclusively that, in every general agency by parol, the agent has authority to bind his principal by a warranty.” In that case the agent sold clocks, and it was held he could warrant them as being in the scope of his authority and connected with the act of the sale, and it was not necessary to show that the agent was expressly instructed to warrant them. Alpha Mills v. Engine Co., 116 N. C., 802.

Power to sell usually includes power to make such warranties as are customary in that place and business. Thus in sale of personalty, power to warrant quality is implied from power to sell as to such warranties as are customary. Page on the Law of Contracts (2 ed.), Vol. 3, p. 3004; Mfg. Co. v. Davis, 147 N. C., 267. As to implied warranty, see Grocery Co. v. Vernoy, 167 N. C., 428.

The case was tried on the contentions given by the court below which are, in part, as follows:

“Plaintiff contends that when these men came down here they had a right to rely upon the fact that they were authorized by the Corbitt Buggy Co. to make these representations. They contend that they were acting in the scope of their apparent authority when they made these representations; that tbe Cox Mfg. Co. did not know Mr. Corbitt bad told tbem not to make these representations; they bad tbe right to rely upon tbe fact that they bad authority to make tbem and that they were acting, ’ not only in tbe scope of their apparent authority, but actual authority. Plaintiff contends apparent authority is to do what is necessary to be done-in order to carry into effect tbe purpose for which they, were sent down there, and that you should therefore find from this evidence, by its greater weight, not only that these representations were made to them and relied upon, but that these men were acting in the scope of their authority and did bind Corbitt Buggy Co., and that you should answer the first issue 'Yes.’ ■ (This issue was as follows: Did the plaintiff execute the contract for the purchase of 25 automobiles referred to in the pleadings, upon the representations and warranties of the defendant, as alleged in the complaint?)

“On the other hand, defendant, Corbitt Buggy Co., contends you ought not to find that any such representations were made as to the Cox Mfg. Co. by it as principal or by anybody who had authority to bind it. They say that these representations were not made; that Cox Mfg. Co. wanted to buy a cheap automobile and picked these out because they were cheap, and that they ought not to have expected to have gotten a great deal for so little money as that; that some correspondence took place and they advised Cox Mfg. Co. that they were distributors before any representation that might have been made was binding upon them as agent, but only upon their principal, the Argo Motor Co.

Corbitt Buggy Co. contends that it was merely an agent; that while it may have had a little commission, that would not bind them; but they contend that Carter and Teachy made no such representation as testified to by some of the witnesses in this case; that they merely went down there, and that they had been sent a folder or circular, and that Cox and Hunsucker had read this circular and had made up their minds to buy them when Carter and Teachy got down there; that they did not guarantee the automobile at all, and that they did not say the Corbitt Buggy Co. would stand behind any of these automobiles, and that you should find that no such representations were made; that even if you find Carter and Teachy made these representations, that you ought to further find they were not acting in the scope of their authority; that Cox Mfg. Co. ought to have known, by the exercise of reasonable foresight and prudence, that it was only an agent and that Carter and Teachy had no authority to guarantee these automobiles at all, and that when you come to consider this you will find they signed the contract and paid the money and that their remedy would be against the Argo Motor Co., the one who sold these automobiles as principal to the Cox Mfg. Co.; that even if you find these men made these representations, that they have both testified they did not have authority to make them and that they were not acting in the scope of their apparent authority, and that they ought not to be held personally liable for the breach of this contract. They say the contract was made with the Argo Motor Co., and that nowhere does the name of Corbitt Buggy Co. appear except where it says the Corbitt Buggy Co. was distributor of this automobile, and that Teachy and Carter were only acting, as agents of the Argo Motor Co. in this business, and contends that from all the evidence you ought not to be satisfied by the greater weight of the evidence that they are personally liable for any warranty or guaranty and that you should answer this issue No.’ ”

The 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 15 groupings of assignments of error include the other exceptions taken by defendant, Corbitt Buggy Co. The 14th grouping of assignments of error covers the defendant’s 55th exception, which has been considered under the first grouping of assignments of error.

We see no error in the charge on apparent authority or the question of damages. It will be noted that the verdict was for less damages than claimed by plaintiffs. If error on the question of profit, it was not prejudicial.

We can see no prejudicial or reversible error in these assignments, under the theory and law as we construe it, on which this case was tried. The questions are mainly facts which were for the jury to pass on. It may be a hardship on the defendant, but that was a matter for the court below and the jury. We can only pass on matters of law or legal inference in cases of this character.

We have gone through the record and considered carefully the argument and well-prepared briefs of counsel, and can find

No error.

Stacy, J\, dissents.