Lewis v. Clyde Steamship Co.

CLARK, C. J., and DOUGLAS, J., dissenting. In the view which we take of the case, it is not necessary to set out the defendant's prayers for instruction. The court charged the jury that they must find by the greater weight of the evidence that the evidence that the defendant company employed the plaintiff, engaged his services to look after this wreck in their interest; that the contract to bind the company must have been (909) made with some one authorized to speak for it; that some officer engaged to look after its ships engaged the services of the plaintiff; that a general manager would have such authority, but it must be the Clyde Steamship officer, and not that of some other company or corporation; that they were not to give a verdict for the plaintiff because he rendered services to the "City of Jacksonville," but he must have done so under contract or appointment with the defendant company, and that the burden was on the plaintiff to show by a preponderance of the evidence that the defendant employed him. The defendant assigned as error the refusal of the court to nonsuit the plaintiff, and to the charge as given. The only question thus presented for our consideration is whether there was from a legal standpoint any sufficient testimony to be submitted *Page 639 to the jury to sustain the plaintiff's allegation that the defendant company made a special contract with him for services to be rendered at its request in saving and floating the steamship. The finding of the jury upon the first issue eliminates from the controversy any right of the plaintiff to recover as upon a quantum meruit based upon an implied promise to pay for services rendered, of which it received the benefit. So far as the testimony shows, the defendant company had no interest in the said steamship, nor did it receive any benefit whatever from the services of the plaintiff in saving and floating her. The plaintiff averred that the "defendant owned and operated the ship," but in the issue submitted to the jury the question is confined to the ownership. If the issue in regard to the ownership of the steamship by the defendant company had been answered in the affirmative, by reason whereof any benefit accrued to it from the services of the plaintiff, it would have been liable for such services. We are thus brought to the consideration of the single question, whether there was any testimony fit to be submitted to the jury toestablish an express contract of employment. In considering the case from this point of view upon the defendant's motion for (910) nonsuit, the testimony must be taken as true and considered in the light most favorable to the plaintiff. It will be well to keep in mind that so much of the testimony as referred to the steamship carrying the Clyde colors and of the life preservers and other property thereon being marked "C. S.C." is eliminated from our consideration. This testimony was competent only upon the question of ownership, which has been negatived by the verdict. The testimony in regard to the contract is indefinite and unsatisfactory. If, however, tested by the rules laid down by this Court, it is of that character which the law denominatesevidence, and not merely speculative or conjectural testimony, which is declared to be mere scintilla, it was the duty of the judge to submit it to the jury and their peculiar and sole province to pass upon it. There is probably no more delicate duty imposed upon the judiciary than the application of the well-settled rules and principles which have been adopted, in which it is sought to define the line which distinguishes testimony which should be submitted to the jury and that which should not. Gaston, J., in Cobb v. Fogalman, 23 N.C. 440, says: "Although the boundary between a defect of evidence and evidence confessedly slight be not easily drawn in practice, yet it cannot be doubted that what raises a possibility or conjecture of a fact never can amount to evidence of it." Rodman, J., in Wittkowsky v. Wasson, 71 N.C. 451, in discussing this question, quoting the language of the English courts, says: "It is *Page 640 not enough to say that there was some evidence; a scintilla of evidence would not justify the judge in leaving the case to the jury. There must be evidence from which they might reasonably and properly conclude that there was negligence" — that being the fact to be established. (911) And in S. v. Vinson, 68 N.C. 335, the same learned justice says: "It is easy enough to express in general terms a rule of law. . . but it is confessedly difficult to draw the line between evidence which is very slight and that which, as having no bearing on the fact to be proved, is, in relation to that fact, no evidence at all. We may say with certainty, that evidence which merely shows it possible for the fact in issue to be as alleged, or which raises a mere conjecture that it was so, is an insufficient foundation for a verdict and should not be left to the jury." Battle, J., in discussing and applying this principle in Sutton v.Maddrey, 47 N.C. 320, gives this illustration: "Suppose a plaintiff in a case was bound to show the existence of a fact within twenty years, and the only testimony he offered was that of a witness who stated that it existed either nineteen or twenty-one years, and he could not remember which. Could the judge leave that isolated statement to the jury as testimony from which they were at liberty to find the issue in favor of the plaintiff? Certainly not." Faircloth, C. J., in Young v. R. R., 116 N.C. 932, says: "Judges are no longer required to submit a case to the jury merely because some evidence has been introduced by the parties having the burden of proof, unless the evidence be of such a character as that it would warrant the jury to proceed in finding a verdict in favor of the party introducing such evidence." In S. v. Satterfield, 121 N.C. 558, the same judge says: "The duty of drawing the line between a scintilla and evidence fit for the jury is sometimes difficult and delicate, but it is important, and the court must assume the responsibility. It is a preliminary question for the court, who must find, not that there is absolutely no evidence, but that the evidence is such as would justify a jury in proceeding to a verdict, such as will reasonably satisfy an impartial mind." See, also, Spruill(912) v. Ins. Co., 120 N.C. 141; Bank v. School, etc., 121 N.C. 107. Merrimon, J., in S. v. Powell, 94 N.C. 968, says: "Legal evidence is not such as merely raises a suspicion, and leaves the matter in question to conjecture; as said above, it is such as in some just and reasonable view of it — taking all the facts, whether they be many or few — will warrant a verdict of guilty," citing Cobb v. Fogalman, 23 N.C. 440, and other authorities. The difference between the province of the jury to pass upon the weight of the testimony when there is conflict, and to draw legal conclusions *Page 641 from testimony in respect to which there is no conflict, must be kept in mind. The question in this case is simply whether there is, admitting every word of the testimony to be true, any evidence upon which, as a matter of law, the jury could, under the instruction of the court, draw the conclusion that the plaintiff had shown an express contract to perform the services for and on behalf of the defendant corporation. There is no question in this case in regard to the weight of the testimony. Applying this principle to the testimony in this case, we think that it was not sufficient to be submitted to the jury. A natural person becomes liable contractually when a proposition is made upon one side and accepted upon the other, or when a request is made for the performance of service and pursuant thereto the service is rendered. We are not now discussing the question of consideration, as no such question is presented in this case; nor are we discussing the question of ratification, for the same reason. It is elementary that a contract upon which a civil action may be founded must be the result of the concurrence or coming together of the minds of the contracting parties — a corporation, of course, speaking and acting through its authorized agents. The plaintiff says that his testimony establishes this condition. The "City of Jacksonville" was stranded upon the coast of North Carolina. For the purpose of this discussion, she was not the property (913) of the defendant company, but was the property of the DeBary Company. The plaintiff resided in Beaufort, N.C. and being a marine underwriter's agent, telegraphed the underwriters and the defendant steamship company at New York. In response thereto he received a telegram from the secretary of the Boston Board of Underwriters, stating the value of the vessel and using the words "Protect. Advise me." He sent persons to Hatteras and says: "I went to New York to see Mr. Clyde. I saw Theodore Eger and Marshall Clyde. They told me to wait until Frank Clyde came in; he is the president of the company." He then had a conversation with Marshall Clyde, who is the president of the DeBary Bay Company. This conversation was in the place of business of the defendant company. Marshall Clyde asked for a report of the ship, which the plaintiff made and had a conversation about it. He asked the plaintiff if he wanted any money. Eger was present; he was the general manager of the defendant company. The next morning the plaintiff again met the two Clydes with Eger and Mather, the latter being Clyde's insurance adjuster and agent. It seems from the testimony that there was a partnership known as "W. P. Clyde Co." They said, "On what you say, we are going to get the vessel." Marshall Clyde asked him when he was going to leave and the plaintiff said "tonight." He asked him if he wanted any money and the *Page 642 plaintiff answered "No." Eger said, "We want you to go down there and get the ship off; we care nothing for the framework, but we want the hull and machinery." Marshall Clyde told him to go, "spend what is needed, and when the ship is out we will see you handsomely rewarded outside of what the underwriters pay you." This was clearly contractual language. There can be no mistake as to its purport and legal significance. Marshall Clyde had no connection, so far as (914) the testimony shows, with the defendant company. The plaintiff further said: "My first orders came from the Boston Board of Underwriters and owners. I forwarded bill to the Boston Board. Eger and Clyde both said that the contract for saving the vessel had been made with the Atlantic Wrecking Company. I have a contract with the Clyde Steamship Company. The writing was to W. P. Clyde Co. I have written them. I cannot say that all letters were so addressed. I did expect to get my pay from the underwriters. I brought suit in Philadelphia. In my complaint I think I said that the underwriters owed me. I signed the paper." In this condition of the testimony we think it impossible, from a legal standpoint, for a jury reasonably to conclude that the plaintiff had shown a contract between the defendant company and himself. The court instructed the jury that "A general manager would have such authority," that is, authority to make this contract. The only testimony is that of the plaintiff, who says that Eger was the general manager. It is by no means clear that this instruction is correct. We base our conclusion, however, upon the proposition that the testimony, measured by the rules laid down by this Court, is not sufficient to be submitted to the jury to sustain the plaintiff's contention. In the opinion rendered by this Court at the last term, the learned justice speaking for the majority of the Court said: "He (the plaintiff) further testified that the vessel in question wore the Clyde colors; that there was a large `C' on the flag fastened to the flagstaff; that the life preservers, etc., were all marked `C. S.C.' He also stated that the had some correspondence with the Clyde Steamship Company, the defendant in this action. This, at least, was some evidence tending (915) to prove that the plaintiff made a contract with the defendant as alleged, and that the defendant had some substantial interest in the vessel." With great deference for the opinion of the learned justice, we think that the testimony to which he refers, in the light of the finding of the jury upon the issue of ownership, should not have been considered by the jury as tending to prove that the plaintiff made a contract with the defendant. The plaintiff testified that "the writing was to W. P. Clyde Co. I have written them. I cannot say that all letters were so *Page 643 addressed." It is true that he used the words "have a contract with the Clyde Steamship Company." We are unable to see whether this language referred to the alleged contract in controversy or some other contract. If the former, it was a conclusion drawn by the plaintiff rather than the statement of a fact. The plaintiff himself appears to have regarded his employment as being by the Boston Board of Underwriters. He so expressly states. He says that he made out his account against them and brought suit in Philadelphia, and that he was sent there by the underwriters, all of which is inconsistent with the allegation that he was acting under a contract with the defendant company. There is no evidence in the record as to when or what company employed persons who performed the service of saving and floating the steamship, or who or what company took possession of her after she was afloat. The plaintiff should undoubtedly be paid for his services, but we do not think that he produced sufficient testimony to be submitted to the jury that he made a contract with the defendant company to render the service. We can well understand that in the office of the defendant company in New York, in a conversation, in which the president of the defendant company, the president of the company owning the steamship and the superintendent of the defendant company all joined, there should be uncertainty as to which corporation was dealing with the plaintiff, and that there should be some confusion in his mind. It would seem that good faith and fair dealing would have suggested (916) to the several parties to explain to the plaintiff with whom and with what corporation he was dealing and being employed. It is this very uncertainty which surrounds the testimony that in our opinion makes it conjectural and speculative, and not sufficient to be the basis of a verdict. It may be that in another trial both parties will be able to make a fuller disclosure of the facts which are within their knowledge. Courts should be, and we think are, careful not to trespass upon the "ancient mode of trial by jury," but they must be equally careful to preserve the symmetry of the judicial system which has come to us as the result of the wisdom and experience of the centuries, by firmly preserving the rights, duties and powers of the judge in the trial of causes at law. Verdicts must be founded upon evidence, and the court must say what is evidence. The weight, credibility and the conclusions of fact to be drawn from it are the province of the jury. The defendant contended before us that the contract, if made, was ultravires and not binding upon the corporation. This defense is not raised by or set up in the answer. The majority of this Court were of the opinion on the former hearing that this defense could only be made by way of a plea of confession and avoidance. The former Chief Justice and Mr. JusticeMontgomery thought otherwise, as set *Page 644 forth in the dissenting opinion. The authorities sustain the view of the majority of the Court. It is said in 5 Enc. Pl. and Pr., page 95: "In an action against a corporation, the plaintiff need not set out in his complaint or declaration the capacity of the corporation to make the contract sued on. When the defense of ultra vires is allowable to a corporation the corporation must specially plead it." In the (917) text-book, the plea is always spoken of as "a defense." 1 Clark and M. Corp., sec. 174; 5 Thomp. Corp., sec. 5967. The defendant will pursue such course in this respect as it may be advised. Petition allowed.