Hall v. . Giessell

Walker, J., after stating the facts as above: There are many exceptions in the record, but a careful analysis of them will show that there are really a very , few which need to be considered, because they substantially present all the essential objections taken during the trial, and cover all the matters appearing in the assignments of error. The 'main *659 question was whether the superintendent, W. A. McGee, had the authority to mate the contract with the plaintiff, and if not, whether the contract was afterwards ratified by the defendants with full knowledge of the fact that he had exceeded his authority and as to what he had done. These questions were submitted to the jury by the judge with full and correct instructions, and the jury found either that McGee had the express authority, or that if he did not have it, and had acted either without it, or in excess of it, the defendants, with knowledge of what had been done by him, had freely ratified it. The court gaye clear instructions as to what, in law, would constitute authority in McGee to represent the defendants, and make a binding contract with the plaintiff in their behalf, and also explained fully what was required to hold the defendants liable under the contract by their ratification of it. There was ample evidence to support the charge. Among other things, it was shown that the account ran from September, 1917, to November,. 1918, and that at the first of each month the bill for the month before was presented and promptly paid, until the final statement for $650.33 was presented and held up. It would be very strange if defendants did not know of these transactions each month, and inquire of McGee why he was paying these bills with such regularity and under what contract or understanding with the plaintiff. If the defendants were at all watchful of their interests and diligent in the prosecution and management of their business, they would have ascertained why McGee was making these monthly payments, and, if he did not have authority from them to thus trade with the plaintiff, and was acting without authority or in excess of his authority, they would certainly have made earlier complaint. The jury had the right to consider this and the other evidence bearing upon the question, and particularly the Callahan mortgage transaction, and the evidence as to what was said by the defendant Richardson. The conclusion of the jury was not against the weight of competent and relevant testimony to show the authority of W. A. McGee, which he professed to have, or ratification if he did not have it. The parol evidence objected to by the defendants was competent, as the transaction to which it relates was collateral to the issue in this case. This action is not upon the mortgage or the debt it secured, but the evidence was offered to show by the dealings with respect to the mortgage an admission of liability by the.defendants for the debt which is the subject of this action. Greenleaf on Evidence, 275, 279, and 366; Pollock v. Wilcox, 68 N. C., 46; Carden v. McConnell, 116 N. C., 875, and Ledford v. Emerson, 138 N. C., 502, where it was held that the parol evidence rule, as to the contents of a written instrument, applies only to actions between parties to the writing, and when its enforcement is the substantial cause of action. The plaintiff in this case does not seek to *660 enforce any right under the mortgage, but merely to recover a personal judgment against the defendants for a debt due to Him. It was also competent to show that the defendants were receiving benefits under the Callahan transaction, and that it was executed practically to indemnify them against any loss on account of the plaintiff’s debt. This evidence tended to show that the defendants’ conduct, with reference to the Callahan mortgage, was, at least, an implied admission of their liability for the debt in suit. It is held even that a party may be estopped by receiving benefit under a contract to deny its validity, and his liability under it. Sprunt v. May, 156 N. C., 388; McCracken v. R. R., 168 N. C., 62; Watson v. Mfg. Co., 147 N. C., 469. It makes no difference that the mortgage may have been taken in the name of W. A. McGee if it was really intended for the benefit of the defendants. Watson’s case, supra, at pp. 474-5. One who relies on a contract made for his benefit by another, who assumes to act as his agent, is not allowed to accept benefits under the same, and at the same time repudiate the agency, and in this way avoid the- burdens. Sprunt v. May, supra; McCracken v. R. R., supra. There was sufficient evidence in this ease for the jury to find that W. A. McGee had entire charge and control of the defendants’ mill and its operation, and was clothed with sufficient authority, as defendants’ agent, to make the contract with the plaintiff within the principle declared in Watson v. Mfg. Co., supra, as.stated in the fifth head-note, and more specifically in the opinion of the court, and the jury found that he did have the requisite authority, or that defendants had ratified what he did. It is not open to the defendants now to allege that the supplies furnished to the hands were of no benefit to the defendants. The evidence really shows that they were, and the jury, under the charge of the court must have found that they were. There are objections to the manner in which the contentions of the parties were stated to the jury, but they come too late, as we have often held in similar cases, the following being the most recent ones: S. v. Spencer, 176 N. C., 709; Bradley v. Mfg. Co., 177 N. C., 153; Sears v. R. R., 178 N. C., 285. There are exceptions to the submission of the issues and to those tendered by the defendants, which were rejected by the court. The issues submitted were sufficient to embrace every question in dispute between the parties, and. for the parties to present every material phase of the case, and this being the ease, an objection to it is groundless. Patterson v. Mills, 121 N. C., 258; Warehouse Co. v. Ozment, 132 N. C., 848; Hatcher v. Dabbs, 133 N. C., 239; Pretzfelder v. Ins. Co., 123 N. C., 164. *661 The judge charged correctly as to the notice that he had been given not to furnish any more supplies without an order, so this was a question for the jury, and the matter, as to the $100 instruction in the sale of the goods received the same treatment from the court. The question raised as to the statute of frauds was properly explained to the jury by the judge in his charge. The judge charged sufficiently, and quite fully, as to the burden of proof, and responded to the requests for instructions, so far as the defendants were entitled to have him instruct the jury. The charge covered the case, in every feature of it, and was full, clear and precise, and if there was no direct and specific response to the requests for instructions, those which were proper will be found substantially given in the general charge. The judge was not bound to use the language of counsel but was at liberty to choose his own if the request was given in substance, and its force not weakened’ by a change in phraseology. Graves v. Jackson, 150 N. C., 383. It is well settled that the failure to give instructions tendered by a party is not error, if they have been substantially covered by the general charge. S. v. Baldwin, 178 N. C., 693. The motion to nonsuit was properly refused, as there was sufficient evidence to be considered by the jury. The case in its full development, really resolved itself finally into a question of fact. The simple principles of law arising upon the evidence were correctly explained and applied to the case, and the jury, as to the facts, accepted the plaintiff’s version. There are so many exceptions, that it would be a work of great labor, and accomplish no good purpose, to consider them in detail. When they are considered, and properly classified, they may be greatly reduced in number, and scope, as they have taken a wide range. This process of classification and reduction we have undertaken, and have attempted to confine ourselves to the salient points made by the learned counsel for the defendants in his brief, and able argument before us. The presiding judge, we think, tried the case well and without a flaw. No error.