County of Caldwell v. George

AlleN, J. A jury trial being waived, the findings of fact by the judge have the force and effect of a verdict, and are conclusive upon us, in the absence of an exception that there is no evidence to support them (Matthews v. Foy, 143 N. C., 384), and there is no such exception in the record. "We have set out these findings at length because they meet and answer every position taken by the defendant and fully sustain the judgment in favor of the plaintiff. It is true the checks were .deposited to guarantee the performance of the contract of 6 December, 1916, and that the plaintiff was without authority at that time to i£sue the bonds, but his Honor finds that neither Spitzer & Co. nor the defendant elected to withdraw the bid for the bonds or demand the return of the checks because the bonds could not be legally issued, but that, on the contrary, they “continued the bid in force, giving opportunity to the plaintiff to have themselves clothed with authority and to resolve any further doubts by Supreme Court decision.” And the same finding applies with equal force to the second contention, the resolution of 9 February, 1917, and the negotiations and agreement of 14th February and 5 March, 1917, being with the knowledge and approval of Spitzer & Co. and the defendant, the court finding further that “while on several occasions in the spring of 1917 making some complaint of the delay and trouble incident to this issue, both Spitzer & Co. and the defendant reiterated their willingness to accept *609 them if legal, this until 24th May,” at which time the plaintiff was ready and able to issue the bonds. The personal'liability of the defendant George is put beyond controversy because it is found that at the time the drafts and cheek were deposited by him he “meant to say to the commissioners that he personally assured and guaranteed them that his principals would keep and perform their proposed contract, and that he was depositing evidences of debt to the amount of $3,000, to the payment of which in due course he was personally obligating himself in order that the board might not reject the bid on account of failure to make the deposit required as a condition precedent” (finding 9). This finding is based on the evidence of Mr. Squires, who testified: “I know the handwriting of W. J. Harrington, chairman of the Board of Commissioners of Caldwell County. I saw him endorse the check of John J. George, No. 8321, dated 6 December, 1916. I heard Mr. George, the defendant, say that he signed this check, and that Mr. Harrington endorsed it. I had a further conversation with Mr. George in reference to that check. At the time of the original negotiations I was not in Lenoir, but I met Mr. George in Raleigh very early in the month of January, 1917. I had a talk with him and a Mr. Emory; he was introduced as being a representative of Sidney Spitzer & Co., Toledo, Ohio. He said the checks were drawn by Sidney Spitzer & Co. in his favor as agent; that he did not have certified checks drawn by a bank, but he made the checks over to the Caldwell commissioners and made a statement to the board that he was solvent and had property in North Carolina sufficient to make his endorsement good, as well as his own cheek good, and he requested that these checks be not sent in for payment. Furthermore, he stated that he told the board not to send the checks in, that he would replace them with New York Exchange.” To the foregoing evidence, and all óf it, the defendant objected and excepted in apt time. The exception could, not .be sustained in any event because it is directed to all of the evidence of the witness, some of which is competent beyond question (Phillips v. Land Co., 174 N. C., 645), but we are also of opinion the part tending to show personal liability of the defendant, to which the argument has been chiefly directed, is not objectionable because the personal liability of the defendant as agent was dependent on surrounding circumstances and conditions, and “Whenever the terms of a contract are susceptible of more than one interpretation, or an ambiguity arises, or the extent 'and object of the contract cannot be ascertained from the language employed, parol evidence may be introduced to show what was in the minds of the parties at the time *610 o£ making tbe contract and to determine tbe object on wbicb it was designed to operate.” 10 R. C. L., 1065. “So.where it is uncertain on tbe face of an instrument whether it was intended to bind the principal or the agent, parol evidence is admissible to explain the latent ambiguity, and to aid in the interpretation.” 10 R. C. L., 1067. The delay in the presentation of the drafts and check “in each case was at the special instance and request of the defendant” (finding 7), and he cannot now complain that the plaintiff did not demand payment earlier; nor does any change in or modification of the original contract have the effect of relieving the defendant from liability because the action of the plaintiff was with his knowledge and approval and at his instance. Even after Spitzer & Co. attempted to withdraw their bid on 24 May, 1917, the defendant, instead of asking that the drafts and check be returned, continued his negotiations with the plaintiff and recognized the contract to be in force. On 1st June he telegraphed counsel, for plaintiff, “Suggest you not press payment my check. When you get Supreme Court decisions we may be able to adjust matters,” and he wrote on 4th June, “Arrange meeting your county board for next Monday. Want to get everything adjusted satisfactorily.” During all this time the plaintiff was endeavoring to meet every objection and held itself ready to deliver bonds, whose legality could not be questioned. The evidence of damage is that, upon refusal of Spitzer & Co. and the defendant to take the bonds according to their contract, the plaintiff, after exercising due diligence and proper precautions, was compelled to resell the bonds at a loss in excess of the amount of the drafts and check, which justified the finding as to damages. The correspondence between the parties, to which objection was made, was competent as explanatory of the delay and for the purpose of showing that the original bid, with its securities, was kept open and was continuing. The conclusion and judgment of his Honor are in our opinion just, and are supported by the facts and the law applicable thereto. Affirmed.