Woodard v. . Stieff

Ax-ueN, J. The first assignment of error is abandoned in the brief of the appellant, and the third and fourth are formal for the purpose of preserving the other exceptions. The authority to set aside a verdict because against the weight of the evidence, which is vested in the trial judge, is discussed in the brief, but this is a discretionary power, which will not be reviewed except when there has been a gross abuse of discretion, of which there is no evidence in this record. Harvey v. R. R., 153 N. C., 567. The second assignment presents the question of the right of an undisclosed principal to maintain an action upon a contract executed by his agent in his own name, and the ruling and instruction of his Honor are in accord with authority here and elsewhere. As was .said in Barham v. Bell, 112 N. C., 133, and quoted with approval in Nicholson v. Dover, 145 N. C., 20, “It is a well established rule of law that when a contract, not under seal, is made with an agent in his own name for an undisclosed principal, either the agent or the principal may sue upon it, the defendant in the latter case being entitled to he placed in the same position at the time of the disclosure of the real principal as if the agent had been the real contracting party.” Ewell’s Evans on Agency, 379; Story on Agency, 420; Wharton on Agency and Agents, 403. No error.