McCall v. Textile Industrial Institute

Clark, C. J. There was evidence sufficient to be submitted to the jury offered to show that J. W. Alexander was the agent of the defendants. The nonsuit was evidently entered by the court on the ground that there was not a sufficient signing under the statute of frauds. It was in evidence that the plaintiff, McCall, got in touch over the phone with Dr. Óamak, president of the Textile Industrial Institute, and through him met the real estate agent, J. W. Alexander, who stated that he was acting as agent for defendants in the sale of the property. The plaintiff showed declarations and letters of the president of the Textile Industrial Institute sufficient to submit to the jury to show that Alexander was acting as agent for the defendants. The alleged contract was duly acknowledged by J. F. McCall and probated by him. The plaintiff also exhibited a check for $500 dated 26 February, 1923, the same day as the deed given by McCall to “J. W. Alexander, agent for the defendant, Textile Industrial Institute,” which was duly cashed, and also plaintiff tendered to the defendants, through J. W. Alexander, as the second payment $3,000 called for in the deed, which the defendant refused to accept. The defendants in their answer admitted that the property in question had been placed with J. W. Alexander, a general real estate agent, for sale, and the question depends upon whether the signature at the bottom of the contract entered in the manner it was, was intended to be a signature by Alexander, and as the agent of the defendant. It is true the paper is signed at the end, but below the dotted line on which witnesses were to sign. The plaintiff contends that though the instrument was signed at the bottom in this manner that Alexander intended to sign it as a witness. Indeed the recitals in the deed tend to show that it was a contract or an agreement to sell and buy. The acceptance by Alexander of the check to him as agent'for the Textile Industrial Institute of $500, together with the evidence that he was acting as agent in the negotiation for the Textile Industrial Institute, makes it a question of fact whether the signature of J. W. Alexander was placed on the contract as such agent. The plaintiff contends that there was no possible reason why he should have signed it as a witness, especially in view of the evidence amply sufficient to go to the jury of his agency from the defendant, the Industrial Institute, for the sale of the property. *761 In 25 R. C. L., 686 (sec. 324), it is said, with full citation of authorities: “If an agent is duly authorized to make, the contract in behalf of his principal, the memorandum, though signed by the agent in his own name, may be sufficient to satisfy the statute as the statute does not require that the signature be in the name of the principal, and the signature of the agent in such case is deemed the signature of the principal. The statute does not exclude parol evidence that a written contract for the sale of goods or land purporting to be between the seller and buyer was in fact made by the buyer only as agent for another for the purpose of charging the principal.” To the same purport is Neaves v. Mining Co., 90 N. C., 412, that a draft signed by an agent is a sufficient memorandum of contract to fill the condition of the statute of frauds .and bind the principal,-though the name of the latter does not appear in the instrument. The authority of the agent may be shown aliunde, and such authority need not be in writing. In this case the check was made payable to the order of “J. W. Alexander, agent for the Textile Industrial Institute; five hundred and no-100 dollars,” and recites that it was for “land — 1,918 acres.” And it was in evidence that the said check was cashed by Alexander; and, as already stated, there was evidence sufficient to go to the jury to show that he was acting in the transaction as the agent of the defendant, the Textile Industrial Institute, and that the second payment of $3,000 was tendered in due time according to the terms of the paper-writing, and that the balance of the specified sum was also duly tendered. The above case of Neaves v. Mining Co. cites numerous authorities to the same effect, and it has been often cited since, and has been reprinted with annotations in 47 Am. Dec., 529. Also in 25 R. C. L., 657 (sec. 291), it is said, with many citations: “The statute (of frauds) does not change the law as to the rights and liabilities of principals and agents, either as between themselves or as to third persons. Its provisions are complied with if the names of competent contracting parties appear in the writing, and if a party is an agent it is not necessary that the name of the principal be disclosed. Accordingly if a contract, within the provision of this statute, is made by an agent, whether the agency is disclosed or not, the principal may sue or be sued as in other cases.” Neaves v. Mining Co. has been cited and approved to the, same effect in Hargrove v. Adcock, 111 N. C., 171, that it is “a sufficient compliance with the statute if the agent signs his own name instead of that of his principal by him”; and in Hall v. Misenheimer, 137 N. C., 186, and more recently in Burriss v. Starr, 165 N. C., 657. *762 There was ample evidence to be submitted to the jury that J. W. Alexander was the agent of the defendant, the Textile Industrial Institute, to sell this land, and if he was such agent, the manner in which it was signed was sufficient without reciting in the signature that he was agent. The only question that can arise, if the jury shall find that he was the agent of the defendants, is upon the location of the signature, the defendant contending that it shows that Alexander signed only as a witness. The plaintiff contends that there is nothing that so indicates and no fact nor reason that he should have signed other than as agent. This was a question of fact upon all the evidence, whether the affixing of the signature in that place and manner was done by Alexander as agent or not. This was a fact which calls for ascertainment by a jury, and in nonsuiting the plaintiff there was Error. Note. — This opinion was written in accordance with the Court’s decision and filed, by order of the Court, after Chief Justice Clark’s death.