Colonial Oil Co. v. Jenkins

CoNNOR, J. At tbe trial of this action, tbe evidence for tbe plaintiff tended to show that .during tbe years 1931 and 1932, George C. Dodge was tbe agent of tbe plaintiff, and that as such agent be sold and delivered at bis filling stations in Elizabeth City, N. C., gasoline and petroleum products which were delivered to him by tbe plaintiff for that purpose. Tbe said George C. Dodge agreed to account to tbe plaintiff for all gasoline and petroleum products which were delivered to him as agent of tbe plaintiff and for tbe proceeds of all sales made by him. of such gasoline and petroleum products. There was no evidence for tbe defendant to tbe contrary. Tbe evidence for tbe defendant tended to show that during tbe years 1931 and 1932 tbe defendant Chas. H. Jenkins was engaged in business at Elizabeth City, N. C., under tbe name and style of Chas. H. Jenkins Buick Company, and that during said years George 0. Dodge was *143 engaged in the business of selling and delivering gasoline and petroleum products at filling stations in Elizabeth City, N. C., which were owned and operated by him; that on or about 30 May, 1931, the defendant sold to the said George C. Dodge an oil tank truck, which the said George 0. Dodge purchased and used in conducting his business. The purchase price of said truck was $1,025. In part payment of said purchase price, the said George C. Dodge executed and delivered to the defendant his note for the sum of $220.00. The remainder of said purchase price was financed by a Finance Corporation. George C. Dodge failed to make a payment of $78.62 to said Finance Corporation when the same became due, and the defendant was required to make and did make said payment for him. During the fall of 1932, the truck which the defendant had sold to the said George C. Dodge was badly damaged in a wreck. At his request, the defendant repaired said truck at a cost of $318.22. The evidence for the defendant tended to show further that at the time the defendant sold the truck to the said George C. Dodge, at the time the defendant made the payment to the Finance Corporation for him, and at the time the defendant repaired the truck after it was damaged in the wreck, it was agreed by and between the defendant and the said George C. Dodge that the amounts due by defendant to the said George C. Dodge for gasoline and petroleum products which were sold and delivered to the defendant, from time to time, by the said George C. Dodge at his filling stations in Elizabeth City, N. C., should be applied as payments on the indebtedness of George C. Dodge to the defendant; that pursuant to such agreement the defendant purchased gasoline and petroleum products, from time to time, from the said George C. Dodge, and the amounts due by - reason of such purchases were applied to said indebtedness, leaving a balance due now on said indebtedness of $512.98. There was no evidence for the plaintiff to the contrary. The evidence for the defendant tended to show further that if in fact the said George C. Dodge was the agent of the plaintiff, as alleged in the complaint, and as such agent sold and delivered to the defendant the gasoline and petroleum products shown on the statement of account attached to the complaint, the defendant had no notice of such agency and was ignorant of such fact. There was evidence for the plaintiff to the contrary. The evidence for the defendant tended to show further that on or about 1 November, 1932, the plaintiff for the first time presented the statement of account attached to the complaint to the defendant at his place of business in Elizabeth City, N. C., and demanded payment by the defendant of said account; that the defendant had no notice prior to said date that plaintiff contended that George C. Dodge was its agent *144 during the years 1931 and 1932, and as such sold and delivered gasoline and petroleum products of tbe defendant at bis filling stations in Elizabeth City, N. C.; that defendant immediately informed the plaintiff of his agreement with the said George C. Dodge with respect to the application of the amounts due by him for gasoline and petroleum products which he had purchased from the said George 0. Dodge as payment on the indebtedness of the said George 0. Dodge to the defendant; that at the request of the plaintiff, the defendant furnished it an affidavit setting-out his agreement with the said George 0. Dodge, and the amount of his indebtedness at that time to the defendant; and that plaintiff thereupon stated to the defendant that it would collect the amount of the account from George 0. Dodge, or from the surety on his bond to the plaintiff. There was evidence for the plaintiff to the contrary. The evidence for the defendant tended to show further that from 1 November, 1932, to 3 May, 1935, when this action was begun, the defendant had no notice, from the plaintiff or otherwise, that plaintiff had failed to collect said account from George C. Dodge, or from the surety on his bond to the plaintiff, and that in the meantime the defendant relied upon the assurance of the plaintiff that it would collect the account from the said George C. Dodge, or the surety on his bond to the plaintiff, and made no effort, because of such reliance, to collect the indebtedness due him by the said George 0. Dodge. An action by the defendant to collect' said indebtedness would now be barred by the statute of limitations. There was evidence for the plaintiff to the contrary. At the close of the evidence, the trial court was of opinion that there was no evidence tending to show that the plaintiff had ratified the agreement of its agent, George C. Dodge, with the defendant with respect to the application of the amounts due or to become due by the defendant for gasoline and petroleum products sold and delivered to him-by the said George C. Dodge, at his filling stations in Elizabeth City, N. C., as payments on the indebtedness which the said George C. Dodge had incurred to the defendant, and was thereby estopped from maintaining this action against the defendant, and accordingly withdrew the 3d, the 4th, and the 5th issues from the consideration of the jury. In this there was error, for which the defendant is entitled to a new trial. If the jury shall find from the evidence the facts to be as the defendant contends, and shall answer the 3d, or a similar issue, in the affirmative, the plaintiff will not be entitled to recover of the defendant in this action. The principle applicable in that event has been stated by Walker, J., in Wells v. Crumpler, 182 N. C., 351 (page 358), 109 S. E., 49, as follows: “Where a party who has, or claims a right, either openly and un *145 equivocally abandons it, or does not assert it wben be should do so, and induces another by his silence or conduct to believe that the right does not exist, or that he makes no claim to it, if he has it, and abandons and surrenders it, and the other party, acting upon such conduct as it was intended that he should do, and is induced thereby to do something by which he will be prejudiced, if the party who so acted is permitted to recall what he has done, equity steps in and protects the party thus misled to his prejudice, and will forbid the other to speak and assert his former right, when every principle of good faith and fair dealing requires and even demands that he should be silent.” The defendant is entitled to a new trial. It is so ordered. New trial.