Katzenstein v. Raleigh & Gaston Railroad

Ashe, J. As to the exception taken to the admission of the receipt given by Terrel in the name of Shell, we concur with the ruling of His Honor. There was abundant proof to go to the jury that Terrel was the agent of the defendant. An agent is one who is employed by another to do some act or transact some business on his account. Story on Agency, § 3; Parsons on Contracts, pp. 39 et seq. It is not necessary to' show the appointment of an agent; his agency may be inferred from the relations of the parties, and the nature of the employment. Bouvier’s Law Diet., 83. It was in evidence that Shell was the regularly appointed agent of defendant company at their Warrenton depot, but that he lived three miles- away from the depot, and was occupied in driving a back from Warrenton to the depot. Terrel lived at the depot,.and for two years before this action was commenced, had attended to the business of the office at that point, and had discharged the duties of agent-in receiving and forwarding goods, selling tickets, sending telegrams to the superintendent, ordering cars to be sent, &c., all of which was done in the name of Shell, with the knowledge and acquiescence of the defendant, for it is impossible that he should have discharged all of these duties pertaining to the office of agent, for such a length of time, without their knowledge and approval. If he was not their agent, and had no right to bind them by his acts, then the defendant company had been shipping freight and doing other business as carriers for two years without responsibility. If he was not their agent, why did the superintendent tell the plaintiff to notify him if Terrel did not ship his-goods promptly ? It matters not whether Terrel signed the receipt with Shell’s name, or that of the company, or whether he was paid for his services by the one or the other, if he *693 transacted the business of the company, and performed the •duties of an agent on their account, with their knowledge, or with their acquiescence, he was their agent, and they were bound by any aet of his within the scope of the authority impliedly given. As to the second exception of the defendant, we think it was as groundless as that taken to the agency of Terrel. The action was properly brought in the name of the plaintiff. Article nine, section five of the constitution does give to the county sehool fund all monies, stocks, bonds, and other property belonging to a county, the nett proceeds of the sale of estrays, the clear proceeds of all'penalties and forfeitures and of all fines collected in the several counties, for any breach of the penal or military laws of the state; but there is a distinction between those penalties that accrue to the state, and those that are given to the person aggrieved, or such as may sue for the same, and no doubt this distinction was in the eonternptation of the framers of the constitution when they adopted that section. There are many penalties given against officers and others whom, no one is authorized to sue, and those when collected, belong to the state. It must be this elass of penalties that is given to the county school fund. If it was intended by the constitution to give them all penalties, as well those that belong to the state as those that are given to the party aggrieved or common informer, then the statutes giving penalties in the both cases would beeome a “dead letter;” for there might be, now and then, found a person malicious enough, but none so patriotic and unselfish as to bring an action fora penalty and incur responsibility for costs, when he knew the fruits of his suit would fall into other hands. If the penalty sought to be recovered in this action belongs to the county sehool fund, then all penalties must go the same way, and hereafter, the plaintiff who amerces a sheriff in the sum of one hundred dollars for not serving his process, will collect it *694 for the benefit of the school'fund of his county.. That cannot be the meaning of the constitution.. As to the third -exception, we need only refer to the case of Branch v. Wilmington and Weldon R. R. Co., 77 N. C., 347, where this court expressly decided that the section in question of the act of 1874-’75 was not in violation of the constitution of the United States. In this court the defendant, as ho had the right to do-, raised an objection to the jurisdiction of the justice’s court, and insisted that even if the plaintiff had the right to maintain this action in his own name, the justice of the peace had no jurisdiction of the action,' for the constitution defines and prescribes the jurisdiction of the justice of the peace by providing that “the several justices.of the peace shall have jurisdiction of civil actions wherein the sum demanded shall not exceed the sum of two hundred dollars, and wherein the title to real estate shall not be in controversy, (Art. IY, §. 27) that to give him jurisdiction it must not only be shown that it is. a civil action, but that it was founded on contract. That-is true; hut then isa penalty a contract, or is it in the nature- of a contract? When this court has found itself “ afloat” upon the “uncertain sea” of code interpretation, it has necessarily and very properly had recourse to the “old landmarks” established under the former system, of pleading, as guides through the mist that but too frequently envelopes the practice under the provisions of the code. For although the distinction between actions at law, and suits in equity and the forms of actions are abolished, and there is- in this state but one form of action, it is only the name and farm- of the action that are abolished; the essential principles are preserved. Under the present system, when the plaintiff sets forth in his complaint, as he is required to do, a plain and concise statement of the facts constituting his cause of action,, the principles that govern his, cause of action under *695 the common law and equity pleadings are still applicable, as indicating the nature of the grievance, the evidence required, and the means of relief, and the action is just as much an action of trespass, detinue, or debt, as if it had been called so in the pleadings. Bliss on Code Pleading, 7 and 8; Lee v. Pearce, 68 N. C. 76; Parsley v. Nicholson, 65 N. C., 207. In common lav/ pleadings the action of debt was the remedy to recover a debt eo nomine and in numero ; it was founded upon contract, and in this respect differed from as- surnpsit, which was always founded upon a promise. Simonton v. Borrel, 21 Wendell, 362. The action of debt then, thus founded upon contract, was an appropriate remedy, upon all legal liabilities upon simple contracts, whether written or unwritten; upon notes, whether with or without seals; and upon statutes by a party .grieved, or by a common informer ; whenever the demand was for a sum certain or was capable of being readily reduced to a certainty. 1 Chitty’s Pleading, 123. As for example a penalty imposed by a statute, though the amount is uncertain, and is to be fixed by the court between five and fifty dollars. Rockwell v. Ohio, 11 Ohio, 130. But why was debt an action sounding in contract the proper remedy for a penalty given by a state? The learned jurists whose cumulative wisdom formed the common law system of pleading, -which has been characterized by some of its eulogists as the perfection of reason, must have had good grounds for classifying penalties among those subjects of action denominated ex contractu as distinguished from torts. The only explanation we have been able in our researches to meet with on this subject is to be found in 3 Blackstone’s Commentaries, 160. That learned judge and commentator says: “ There are some contracts implied by law. Of this nature are, first, such as are necessarily implied by the fundamental constitution of government, to *696 which every man is a contracting party. And thus it is, that every person is bound and hath agreed to pay such particular sums of money as are charged on him by the sentence or assessed by the interpretation of the law. For it is a part of the original contract entered into by all mankind, who partake the benefit of society, to submit in all points, to the municipal constitutions and local ordinances of that state, of which each individual is a member. Whatever, therefore, the law orders one to pay, that becomes instantly a debt which he hath beforehand contracted to discharge." In the ease of Wilmington v. Davis, 63 N. C., 582, Judge RodmaN held that a justice of the peace had jurisdiction of a penalty under two hundred dollars; but it is objected that that was a dictum : be it so, yet it was an authority from a very respectable source, which was afterwards cited and approved in the case of the town of Edenton v. Wool, 65 N. C., 379, where this court held that an action for a penalty for a breach of a town ordinance was technically a civil action arising out of contract. There is no error. The judgment must be affirmed. No error. ' Affirmed.