OlakksoN, <T.
The defendant introduced no evidence and at the close of plaintiffs’ evidence made a motion for judgment as in case of nonsuit. C. S., 567. The court overruled the motion and in this we can see no error.
The defendant contends that “The termination of this motion must depend upon the competency of plaintiffs’ evidence to establish (a) contract; and (b) its breach.” Defendant also contends: “That there was no competent evidence offered of the contract. The whole evidence offered by the plaintiffs is to the acts and declarations of the alleged agent, without proof aliunde of agency.”
We think from the direct and circumstantial evidence introduced by plaintiffs that it was sufficient to show that Mr. Klettner and Mr. McKenzie made the contract with the plaintiffs, as is alleged by them, on behalf of defendant corporation, and that the defendant breached it. That the defendant at its Atlanta branch carried out all the terms and agreements made with plaintiffs by Klettner and McKenzie, and there was evidence of ratification. The ear-marks of agency, ratification, breach, etc., are set forth in the above evidence of plaintiffs.
It was in evidence that McKenzie and Klettner, whom plaintiffs contended they made the contract with, were in the courtroom at the trial of this action. “Q. Were those the two men you made your contract with? Answer: Yes, sir.”
This is a civil action. These men did not go on the stand and deny as to what plaintiffs testified was the contract made by them on behalf of the defendant company. There was evidence introduced later to show the agency aliunde.
In Walker v. Walker, 201 N. C., at p. 184, we find: “Whether the charge was true or not, the falsity of it was peculiarly within the defendant’s knowledge. The fact that she did not refute the damaging-charge made by plaintiff, it may be that this was a silent admission of the charge made against her. In Hudson v. Jordan, 108 N. C., at p. 13, the party’s failure to testify was regarded as a ‘pregnant circumstance.’ Powell v. Strickland, 163 N. C., at p. 402; In re Hinton, 180 N. C., at p. 213.” In re Will of Beale, 202 N. C., 623.
The manner and time in which the .evidence aliunde as to agency may be introduced, is largely in the discretion of the court below.
[317]*317In N. 0. Handbook of Evidence (Lockhart), 2d ed., sec. 154, at pp. 187-8, citing numerous authorities, is the following: “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, but such admissions are not admissible to prove the agency; the agency must be shown aliunde before the agent’s admissions will be received. It seems that the judge in his discretion might allow the admissions to be introduced conditionally before the agency was proved, the party introducing the admissions promising to prove the agency afterwards, and it being understood that unless the agency were proved, the admissions would be stricken out. But admissions by an agent, made subsequent to the completion of the transaction to which they relate, are not admissible against the principal, even though the agent continued to act for the same principal in other matters. The declarations and admissions of the agents of corporations are governed by the same principles which apply to the agents of individuals.” Buckner v. C. I. T. Corp., 198 N. C., at p. 699; Credit Co. v. Greenhill, 201 N. C., at p. 612.
In Acceptance Corp. v. Fletcher, 202 N. C., at p. 172, is the following: “In these cases it is held that where there is evidence tending to show that an alleged agent has repeatedly collected money upon debts owed to the alleged principal, and the alleged principal has received the money collected by the alleged agent, and applied the same as payments on his debts, the inference is permissible that an agreement to that effect has been made by and between them, and that the evidence is sufficient to make out a prima facie case of agency.” Bobbitt v. Land Co., 191 N. C., at p. 328; Atkinson v. Harvester Co., 191 N. C., 291; Sears, Roebuck & Co. v. Banking Co., 191 N. C., at p. 505; Bank v. Sklut, 198 N. C., 589; Buchanan v. Carolina Stores, Inc., 200 N. C., 792.
In Bobbitt v. Land Co., supra, at p. 328, is the following: “Hoke, J., in Powell v. Lumber Co., 168 N. C., p. 635, speaking to the question, says: ‘A general agent is said to be one who is authorized to act for his principal in all matters concerning a particular business or employment of a particular nature. Tiffany on Agency, p. 191. And it is the recognized rule that such an agent may usually bind his principal as to all acts within the scope of his agency, including not only the authority actually conferred, but such as is usually ‘confided to an agent employed to transact the business which is given him to do,’ and it is held that, as to third persons, this real and apparent authority is one and the same, and may not be restricted by special or private instructions of the principal unless the limitations sought to be placed upon it are known to such persons or the act or power in question is of such an unusual character as to put a man of reasonable business prudence upon inquiry as to the existence of the particular authority [318]*318claimed (citing authorities). The power of an agent, then, to bind his principal may include not only the authority actually conferred, but the authority implied as usual and necessary to the proper performance of the work intrusted to him, and it may be further extended by reason of acts indicating authority which the principal has approved or knowingly, or, at times, even negligently permitted the agent to do in the course of his employment,” citing authorities.
In Parks v. Trust Co., 195 N. C., at pp. 455 and 456: “Speaking to the subject in Waggoner v. Publishing Co., 190 N. C., 829, 130 S. E., 609, it was said: ‘The defendant will not be permitted to repudiate the act of its agent as being beyond the scope of his authority, and at the same time accept the benefits arising from what he has done while acting in its behalf. Starkweather v. Gravely, 187 N. C., 526. It is a rule too well established to admit of debate that if a principal, with full knowledge of the material facts, takes and retains the benefits of an unauthorized act of his agent, he thereby ratifies such act, and with the benefits he must necessarily accept the burdens incident thereto or which naturally result therefrom. The substance of ratification is confirmation after conduct. 2 C. J., 467. It is also a settled principle of ratification that the principal must ratify the whole of his agent’s unauthorized act or not at all. He cannot accept its benefits and repudiate its burdens. Bank v. Justice, 157 N. C., p. 375.’ ” Lawson v. Bank, 203 N. C., 368.
In regard to the question of the discrepancies in the plaintiffs’ testimony in regard to damage, this was a matter for the jury to determine.
In Collett v. R. R., 198 N. C., at p. 762, citing numerous authorities, speaking to the subject, it is said: “Indeed, it cannot be denied that there are inconsistencies, if not direct conflicts, in the testimony of one or two witnesses introduced by the plaintiff.
Free access — add to your briefcase to read the full text and ask questions with AI
OlakksoN, <T.
The defendant introduced no evidence and at the close of plaintiffs’ evidence made a motion for judgment as in case of nonsuit. C. S., 567. The court overruled the motion and in this we can see no error.
The defendant contends that “The termination of this motion must depend upon the competency of plaintiffs’ evidence to establish (a) contract; and (b) its breach.” Defendant also contends: “That there was no competent evidence offered of the contract. The whole evidence offered by the plaintiffs is to the acts and declarations of the alleged agent, without proof aliunde of agency.”
We think from the direct and circumstantial evidence introduced by plaintiffs that it was sufficient to show that Mr. Klettner and Mr. McKenzie made the contract with the plaintiffs, as is alleged by them, on behalf of defendant corporation, and that the defendant breached it. That the defendant at its Atlanta branch carried out all the terms and agreements made with plaintiffs by Klettner and McKenzie, and there was evidence of ratification. The ear-marks of agency, ratification, breach, etc., are set forth in the above evidence of plaintiffs.
It was in evidence that McKenzie and Klettner, whom plaintiffs contended they made the contract with, were in the courtroom at the trial of this action. “Q. Were those the two men you made your contract with? Answer: Yes, sir.”
This is a civil action. These men did not go on the stand and deny as to what plaintiffs testified was the contract made by them on behalf of the defendant company. There was evidence introduced later to show the agency aliunde.
In Walker v. Walker, 201 N. C., at p. 184, we find: “Whether the charge was true or not, the falsity of it was peculiarly within the defendant’s knowledge. The fact that she did not refute the damaging-charge made by plaintiff, it may be that this was a silent admission of the charge made against her. In Hudson v. Jordan, 108 N. C., at p. 13, the party’s failure to testify was regarded as a ‘pregnant circumstance.’ Powell v. Strickland, 163 N. C., at p. 402; In re Hinton, 180 N. C., at p. 213.” In re Will of Beale, 202 N. C., 623.
The manner and time in which the .evidence aliunde as to agency may be introduced, is largely in the discretion of the court below.
[317]*317In N. 0. Handbook of Evidence (Lockhart), 2d ed., sec. 154, at pp. 187-8, citing numerous authorities, is the following: “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, but such admissions are not admissible to prove the agency; the agency must be shown aliunde before the agent’s admissions will be received. It seems that the judge in his discretion might allow the admissions to be introduced conditionally before the agency was proved, the party introducing the admissions promising to prove the agency afterwards, and it being understood that unless the agency were proved, the admissions would be stricken out. But admissions by an agent, made subsequent to the completion of the transaction to which they relate, are not admissible against the principal, even though the agent continued to act for the same principal in other matters. The declarations and admissions of the agents of corporations are governed by the same principles which apply to the agents of individuals.” Buckner v. C. I. T. Corp., 198 N. C., at p. 699; Credit Co. v. Greenhill, 201 N. C., at p. 612.
In Acceptance Corp. v. Fletcher, 202 N. C., at p. 172, is the following: “In these cases it is held that where there is evidence tending to show that an alleged agent has repeatedly collected money upon debts owed to the alleged principal, and the alleged principal has received the money collected by the alleged agent, and applied the same as payments on his debts, the inference is permissible that an agreement to that effect has been made by and between them, and that the evidence is sufficient to make out a prima facie case of agency.” Bobbitt v. Land Co., 191 N. C., at p. 328; Atkinson v. Harvester Co., 191 N. C., 291; Sears, Roebuck & Co. v. Banking Co., 191 N. C., at p. 505; Bank v. Sklut, 198 N. C., 589; Buchanan v. Carolina Stores, Inc., 200 N. C., 792.
In Bobbitt v. Land Co., supra, at p. 328, is the following: “Hoke, J., in Powell v. Lumber Co., 168 N. C., p. 635, speaking to the question, says: ‘A general agent is said to be one who is authorized to act for his principal in all matters concerning a particular business or employment of a particular nature. Tiffany on Agency, p. 191. And it is the recognized rule that such an agent may usually bind his principal as to all acts within the scope of his agency, including not only the authority actually conferred, but such as is usually ‘confided to an agent employed to transact the business which is given him to do,’ and it is held that, as to third persons, this real and apparent authority is one and the same, and may not be restricted by special or private instructions of the principal unless the limitations sought to be placed upon it are known to such persons or the act or power in question is of such an unusual character as to put a man of reasonable business prudence upon inquiry as to the existence of the particular authority [318]*318claimed (citing authorities). The power of an agent, then, to bind his principal may include not only the authority actually conferred, but the authority implied as usual and necessary to the proper performance of the work intrusted to him, and it may be further extended by reason of acts indicating authority which the principal has approved or knowingly, or, at times, even negligently permitted the agent to do in the course of his employment,” citing authorities.
In Parks v. Trust Co., 195 N. C., at pp. 455 and 456: “Speaking to the subject in Waggoner v. Publishing Co., 190 N. C., 829, 130 S. E., 609, it was said: ‘The defendant will not be permitted to repudiate the act of its agent as being beyond the scope of his authority, and at the same time accept the benefits arising from what he has done while acting in its behalf. Starkweather v. Gravely, 187 N. C., 526. It is a rule too well established to admit of debate that if a principal, with full knowledge of the material facts, takes and retains the benefits of an unauthorized act of his agent, he thereby ratifies such act, and with the benefits he must necessarily accept the burdens incident thereto or which naturally result therefrom. The substance of ratification is confirmation after conduct. 2 C. J., 467. It is also a settled principle of ratification that the principal must ratify the whole of his agent’s unauthorized act or not at all. He cannot accept its benefits and repudiate its burdens. Bank v. Justice, 157 N. C., p. 375.’ ” Lawson v. Bank, 203 N. C., 368.
In regard to the question of the discrepancies in the plaintiffs’ testimony in regard to damage, this was a matter for the jury to determine.
In Collett v. R. R., 198 N. C., at p. 762, citing numerous authorities, speaking to the subject, it is said: “Indeed, it cannot be denied that there are inconsistencies, if not direct conflicts, in the testimony of one or two witnesses introduced by the plaintiff. But while these ap-' parent inconsistencies may have affected the credibility of the witness they would not have justified the withdrawal of their testimony from the jury. This principle is maintained in a number of our cases.”
On the measure of damages, the court below charged the jury: “The court instructs you that the rule for the assessment of damages in a case like this is the difference between the contract price and the fair market value of the goods at the time of the alleged breach. . . . Our court has said in a number of cases, and I am quoting now, gentlemen, from a case in 196 N. C., McCall v. Lumber Company (at p. 603) : ‘That where the contract,’ as in this ease, ‘is broken before the arrival of the time for full performance and the opposite party elects to consider it in that light, the market price on that day of the breach is to govern in the assessment of the damage. The damages are to be settled and ascertained according to the existing state of the market at the time the cause of action arose, and not at the time fixed for the full j)erformance.’ ”
[319]*319In Monger v. Lutterloh, 195 N. C., at p. 279, citing numerous authorities, it is said: “The rule is too firmly embedded in our jurisprudence to need repeating, that ordinarily the amount of loss which a party to a contract would naturally and probably suffer from its nonperformance, and which was reasonably within the minds of the parties at the time of its making, including such special damages as may be said to arise directly from circumstances existent to the knowledge of the parties, and with reference to which the contract was made, is the measure of damages for the breach of said contract. Causey v. Davis, 185 N. C., 155, 116 S. E., 401. Such was the rule laid down in the celebrated case of Hadley v. Baxendale, 9 Exch., 341, and this ease has been consistently followed by us.”
The defendant tendered the third issue as set out in the record, and the court submitted this as follows: “Did the plaintiffs waive breach of contract as alleged in answer ?” This was premised on the evidence of the “pooling car” shipment. "We see no error in the charge of the court below on this aspect. The defendant in its prayers for instructions submitted no prayer in regard to the measure of damage. If it desired more specific instructions, it is well settled that a prayer on this aspect should have been requested.
The defendant strenuously contends in many of its exceptions and assignments of error as to the charge, that the court below failed to declare and explain the law arising on the facts. With no evidence introduced by the defendant and only two witnesses for the plaintiffs, the court’s charge comprised 21 pages, as shown by the record. 'It is complete as to the law on every aspect and carefully prepared, it did not impinge on C. S., 564. It gave the contentions of both sides.
In Davis v. Long, 189 N. C., at p. 137, we find: “In Simmons v. Davenport, 140 N. C., p. 410, Walker, 3., said: 'In the absence of any such request, we cannot say that it was reversible error for the court to have charged in the general terms employed by it, especially in a case like this one, which involves so little complication that a jury could not well have misunderstood the legal aspect of the matter. If a party desires fuller or more specific instructions, he must ask for them and not wait until the verdict has gone against him and then, for the first time, complain of the charge,” citing authorities.
The case was a simple one, both as to law and facts, and the contentions could be easily understood by the jury. It was mainly questions of fact for the jury to determine. Because after stating the contentions the court below did not then make a direct charge on that particular aspect, we cannot hold it prejudicial or reversible error.
This action is typical of what is said in Foster v. Allison Corp., 191 N. C., at p. 172: “State courts are enforcing contracts by foreign claim[320]*320ants against its own citizens and corporations as it should do, but when the citizen lias a suit against a foreign corporation or person, and it has no property in the State, the claim is frequently lost. If the foreign corporation or person has an agent, the cry or defense is frequently no authority or ultra vires. There should be no favorites.” In the judgment of the court below, we find
No error.