Grubb v. Ford Motor Co.

Devin, J. The defendant contends the judgment of nonsuit should be sustained on one of three grounds: (1) That evidence of the oral contract relied on was incompetent. (2) That the person with whom plaintiff alleges he orally contracted was not authorized to make such a contract. (3) That the agency contract being determinable at will, there was no consideration to support the oral agreement. 1. The oral agreement to repurchase the Ford parts was entirely separate and apart from the written contract of agency, and did not vary, contradict, or modify any of its terms. The oral agreement was made more than a year later than the agency contract and was in accord with its terms. It was provided in the agency contract that “upon termination of this agreement the company may, at its option, repurchase from dealer, all or any part of company’s products in dealer’s possession. And the dealer agrees to sell such products to the company at the price paid therefor plus freight.” The plaintiff testified in effect that defendant agreed subsequently by parol to exercise the option given it in the written contract. It is well settled that the rule that parol evidence will not be admitted to contradict or modify a written contract does not apply when the modification takes place after the execution of the contract. Freeman v. Bell, 150 N. C., 146. Nor is it incompetent to prove by parol evidence another and subsequent agreement with respect to the same subject matter. The principle excluding parol evidence has no application to subsequent agreements which change or modify the original contract. Mfg. Co. v. McPhail, 181 N. C., 205; McKinney v. Matthews, 166 N. C., 580. 2. The rule is well established that one is bound by the acts and agreements of his agent while the agent is acting within the scope of his authority or agency, and equally so when the agent is acting within the apparent scope of such authority or agency. Here plaintiff testifies that the defendant’s Mr. Hancock, who made the agreement for the defendant, was the zone manager in charge of the territory; that plainitff went to defendant’s Norfolk branch to see “Mr. Wood” about plaintiff’s dealership and was in effect told that Mr. Hancock had been designated to handle it; that this was a matter with reference to the manner of conducting and the continuance of his dealership. The letter of resignation relied on by defendánt was addressed to the Norfolk office of the defendant Ford Motor Company, and from this fact the reasonable inference may be drawn that this was the same office to *92 which plaintiff had gone and by which the matter had been referred to “Mr. Hancock.” In R. R. v. Lassiter, 207 N. C., 413, Clarkson, J., quotes from R. R. v. Smitherman, 178 N. C., 595, as follows: “While as between the principal and agent the scope of the latter’s authority is that authority which is actually conferred upon him by his principal, . . . such . . . restrictions do not affect third persons ignorant thereof, and as between the principal and third persons, the mutual rights and liabilities are governed by the apparent scope of the agent’s authority, which is that authority which the principal has held the agent out as possessing, or which he has permitted the agent to represent that he possesses. . . . The authority must, however, have been actually apparent to the third person, who . . . must have dealt with the agent in reliance thereon, in good faith and in the exercise of reasonable prudence, in which ease the principal will be bound by the acts of the agent performed in the usual and customary mode of doing such business.” Bobbitt v. Land Co., 191 N. C., 323; Gallop v. Clark, 188 N. C., 186. Under the circumstances testified to by plaintiff, he was justified in dealing with Hancock as the authorized agent of Eord Motor Company, or as acting within the apparent scope of his authority. 3. While the written contract constituting plaintiff a Eord dealer contains the provision, “This agreement may be terminated at any time at the will of either party by written notice to the other,” the continuance of this contract seems to have been regarded by the parties, according to plaintiff’s evidence, as of some value, and plaintiff’s resignation of sufficient benefit to the defendant, or detriment to the plaintiff, to constitute consideration for the oral agreement sued on. The oral agreement consisted of mutual promises, each to the other, which the plaintiff testifies he performed on his part not only with respect to the surrender of his contract, but also as to the performance of other acts to be done under the agreement. The principle is stated in Institute v. Mebane, 165 N. C., 644: “A valuable consideration in the sense of the law may consist either in some right, interest, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other. Courts will not ask whether the thing which forms the consideration does in fact benefit the promisee or a third party, or is of any substantial value to anyone. It is enough that something is promised, done, forborne, or suffered by the party to whom the promise is made, as consideration for the promise made to him.” To the same effect is Exum v. Lynch, 188 N. C., 392; R. R. v. Ziegler, 200 N. C., 396; Ex parte Barefoot, 201 N. C., 393; Warren v. Bottling Co., 204 N. C., 288; Grier v. Weldon, 205 N. C., 575. *93 In Ford Motor Co. v. Kirkmyer, 65 Fed. (2d), 1001, cited by counsel for defendant, Circuit Judge Parker, in a well considered opinion, construed a dealership contract of the Ford Motor Company and reached the conclusion in that case that the contract being terminable at will could not form the basis of an action for damages because of lack of consideration and mutuality. But the facts upon which that opinion was based are distinguishable from those in the case at bar, and do not militate against the position here taken. The rule is that on a motion for nonsuit the plaintiff’s evidence must be considered in its most favorable aspect. Viewing it in this light, we conclude that upon none of the grounds urged by defendant can the nonsuit be sustained. The plaintiff’s evidence was sufficient to have entitled him to have it submitted to the jury with appropriate instructions. The judgment of nonsuit is Reversed.