Taylor v. Albemarle Steam Navigation Co.

*488 Shepi-ibed, J.: 1. The defendant objected to the introduction of the registry of the paper-writing, because it was not such an instrument as is required and allowed to be registered. It is contended that, at most, it was but “a license or easement to deposit and receive freights on the wharf” of the plaintiff. We are of the opinion that the writing is within The Code, § 1264, in that it purports to convey an “interest in or concerning land.” It amounts to more than a mere license, for it grants to the defendant a right to land all freights for Winton on the plaintiffs’ wharf for the period of ten years, and confers an exclusive right to receive any freight on said wharf which the defendant may be willing to transport. Taking this to be the grant of a mere right-of-way, it falls within the words of the statute, for a right-of-way is an incorporeal hereditament, “ which is a right issuing out of a thing corporate ('whether real or personal), or concerning, or annexed to, or exercisable within the same.” 2 Blackstone, 21. 2. The objection to the testimony of W. P. Taylor that J. T.’Hill, who executed the writing, was at that time acting as the superintendent of the defendant company, is without merit. It was competent to show this fact, and, even if it were not admissible, the defendant could not have been prejudiced, as his Honor expressly told the jury that there was no testimony tending to show that Plill was authorized to execute the writing, and that its validity depended upon its ratification by the defendant. 3. The defendant offered to prove that the plaintiff built and leased another wharf to an opposition line. This was very properly rejected, as there is nothing in the contract which prevented the plaintiff from so doing. We will add that the instructions of the Court upon this alleged breach of contract on the part of the plaintiff were fully as liberal as the defendant was entitled to. *489 4. The defendant offered in evidence a letter signed by one of the plaintiffs. It was rejected by the Court, and the defendant excepted. No such letter appears in the record, and as it was the duty of the appellant to have had it brought up, and, we are ignorant of its contents, the exception must be overruled. 5. The first, second, third and fourth prayers for instruction were substantially given by the Court. It was not necessary to show a formal ratification of the contract by the Board of Directors. It was sufficient, as the Court charged, if the defendant “accepted it, acted under it, and performed its terms * * * with full knowledge of its 'import.” This instruction was clearly sustained by the testimony of J. Ii. Bogart, the superintendent of the defendant, who stated that the defendant “ liad used the plaintiff’s wharf since the date of the agreement, and acted under it.” 6. The sixth, seventh, eighth and ninth prayers for instruction are founded upon an erroneous construction of the contract. The defendant agreed that it would land all of its boats touching at Win ton at the plaintiff’s wharf,-in consideration of the exclusive privileges granted, and the plaintiff was to receive a certain rate of wharfage on all of the freight landed and received for shipment. It is very clear that if the defendant erected another wharf near the town of Winton, for the sole purpose of “drawing freight from the plaintiff’s wharf, as testified to by Superintendent Bogart, and thus, by defendant’s efforts, such freights and business were withdrawn! from the plaintiff’s wharf before the expiration of the agreement, by the instigation of the defendant’s agents, it w'ould be a violation of the agreement.” Such was the charge of the Court upon this question, and we think that it was a correct interpretation of the contract. Upon a perusal of the whole charge, we are unable to discover any error of which the defendant can justly complain. *490 7. The third assignment of error in the charge is too general, and cannot be considered by this Court. McKinnon v. Morrison, 104 N. C. Affirmed.