Investment Properties of Asheville, Inc. v. Allen

188 S.E.2d 441, 281 N.C. 174, 1972 N.C. LEXIS 1101
CourtSupreme Court of North Carolina
DecidedJune 28, 1972
Docket94
StatusPublished
Cited by40 cases

This text of 188 S.E.2d 441 (Investment Properties of Asheville, Inc. v. Allen) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Investment Properties of Asheville, Inc. v. Allen, 188 S.E.2d 441, 281 N.C. 174, 1972 N.C. LEXIS 1101 (N.C. 1972).

Opinions

MOORE, Justice.

Defendant Allen first contends the trial court erred in denying her motion for a directed verdict made at the close of all the evidence.

On a motion for a directed verdict by the defendant, the court must consider the evidence in the light most favorable to the plaintiff, and may grant the motion only if, as a matter of law, the evidence is insufficient to justify a verdict for the plaintiff. G.S. 1A-1, Rule 50(a), Rules of Civil Procedure; Adler v. Insurance Co., 280 N.C. 146, 185 S.E. 2d 144 (1971); Kelly v. Harvester Co., 278 N.C. 153, 179 S.E. 2d 396 (1971); 5A Moore’s Federal Practice § 50.02 [1] (2d Ed. 1969).

The motion presents substantially the same question for sufficiency as did a motion for an involuntary nonsuit under former G.S. 1-183. See Comment by Phillips in 1970 Pocket Part to McIntosh, North Carolina Practice and Procedure § 1488.15 (2d Ed. 1969). As to the rules which governed the motion for [181]*181an involuntary nonsuit under G.S. 1-183, see Bowen v. Gardner, 275 N.C. 363, 168 S.E. 2d 47 (1969).

In support of her motion for a directed verdict, defendant insists that there was no evidence of agency between defendant and Norburn, that the rescission of the written lease contract was not in writing and was improper because of the ‘ Statute of Frauds, and that there was no evidence that defendant Allen promised to pay for the grading work or that her alleged agent Norburn made such promise for her.

Taken in the light most favorable to plaintiffs, the evidence tends to show that defendant was quite sick during the spring and summer of 1965; that she was over 75 years of age, separated from her husband and in the process of obtaining a divorce; and that she was aware of the negotiations between Norburn and Robertson leading to the lease of 10 May 1965, which she signed and which she later learned was not a good lease. Defendant felt that the land in question was partly owned by her brothers although their names were not on anything, and that she and her brothers had obligations to each other. She also felt that “Norburn had business and good judgment,” and although she did not know much about the negotiations between Norburn and Robertson, she signed the lease of 10 May 1965 because she trusted Norburn to do what he thought was best. On one or two occasions Norburn took her to view the grading on the property and talked to her about the status of the grading work, filling, and excavation. The lease which defendant finally signed with the West Side Motel Company, Inc., was also negotiated and approved by Norburn. This lease to West Side Motel Company, Inc., contained various provisions suggested by Norburn, one of which was, “Lessee acknowledges that certain grading, excavating, and laying pipes and building manholes have heretofore been done on the leased premises,” with a further provision that should it ultimately be determined that defendant or Norburn was responsible for this grading, any such expense for which they might be liable would be paid by the West Side Motel Company, Inc.

In discussing the power of an agent to bind its principal, Justice Bobbitt (now Chief Justice) in Research Corporation v. Hardware Co., 263 N.C. 718, 721, 140 S.E. 2d 416, 418-19 (1965), states:

[182]*182“Our decisions adopt and quote the following statement from Tiffany on Agency, pp. 180-181, viz: ‘The principal is liable upon a contract duly made by his agent with a third person — (1) When the agent acts within the scope of his actual authority; (2) When the contract, although unauthorized, has been ratified; (3) When the agent acts within the scope of his apparent authority, unless the third person has notice that the agent is exceeding his actual authority. “Apparent authority,” as the term is used in the foregoing section, includes authority to do whatever is usual and necessary to carry into effect the principal power conferred upon the agent and to transact the business which he is employed to transact; and the principal cannot restrict his liability for acts of his agent within the scope of his apparent authority by limitations thereon of which the person dealing with the agent has not notice. The principal may be estopped to deny that a person is his agent, or that his agent has acted within the scope of his authority.’ Wynn v. Grant, 166 N.C. 39, 47, 81 S.E. 949; Brimmer v. Brimmer, 174 N.C. 435, 439-440, 93 S.E. 984; Jones v. Bank, 214 N.C. 794, 797, 1 S.E. 2d 135.”

Here, the evidence favorable to the plaintiffs tends to show: (1) Defendant knew Norburn was negotiating with Robertson to lease her property to the corporate plaintiff for the construction of a Holiday Inn; (2) as a result of these negotiations, the lease of 10 May 1965 was signed by defendant because she trusted her brother to do what was best for her; (3) that the defendant was later advised that this “was not a good lease”; (4) that Norburn and Robertson then entered into lengthy negotiations attempting to agree upon a new lease; (5) that while these negotiations were in progress, the grading of the property proceeded and defendant was kept advised by Nor-burn concerning this grading, and on occasions she was taken by him to inspect this work, which had substantially improved her land; (6) that no new lease was agreed upon with Robertson; (7) that the lease of 10 May 1965 was terminated before 1 June 1966, and that Norburn, acting for defendant, negotiated a lease with West Side Motel Company, Inc., for defendant’s property, which defendant signed, and (8) that defendant recognized Norburn as her agent at all times during these transactions and fully ratified his acts done in her behalf. This evidence was sufficient to be submitted to the jury and to over[183]*183come defendant’s motion for a directed verdict. Kelly v. Harvester Co., supra; Equipment Co. v. Anders, 265 N.C. 393, 144 S.E. 2d 252 (1965).

There was other evidence from which the jury could have found to the contrary, but the resolution of the factual issues was properly left to the jury. Sneed v. Lions Club, 273 N.C. 98, 159 S.E. 2d 770 (1968).

In further support of her motion for a directed verdict, defendant contends that the alleged rescission of the lease of 10 May 1965 was not in writing and was improper because of the Statute of Frauds. This contention is without merit. A lease which is required by the Statute of Frauds to be in writing may be rescinded orally by the mutual assent of both parties. Scott v. Jordan, 235 N.C. 244, 69 S.E. 2d 557 (1952); Bell v. Brown, 227 N.C. 319, 42 S.E. 2d 92 (1947).

Defendant also insists there was no evidence that defendant personally or through Norburn promised to pay for the grading work. The evidence discloses that Norburn agreed to pay for this work in the event a new lease was not agreed upon; that he did this to prevent the Asheville Contracting Company from removing its equipment, and also to assure that a Holiday Inn would be constructed on this property. Although no benefit accrued to Norburn, the defendant’s property was substantially benefited by the work done. The evidence further discloses that defendant was advised concerning the grading and actually went on the property to inspect the work. From this evidence the jury could reasonably find that Norburn was acting for defendant when he promised to pay for this work, and that in any event defendant subsequently ratified his promise to pay. See White v. Disher, 232 N.C. 260, 59 S.E. 2d 798 (1950).

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Bluebook (online)
188 S.E.2d 441, 281 N.C. 174, 1972 N.C. LEXIS 1101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/investment-properties-of-asheville-inc-v-allen-nc-1972.