Chatham v. Mecklenburg Realty Co.

DEFENDANT’S APPEAL. Clark, C. J. The court properly instructed the jury that if the words “Mecklenburg Country Club” were stricken out by one of the signers of the paper with the knowledge and consent of the other parties before the delivery to the plaintiff that the paper delivered, signed by the president and two directors of the defendant company, was the sole and exclusive obligation of the defendant; that it was a complete contract in itself, and not a preliminary agreement, and was a valid obligation between the parties. There was evidence that upon the failure of the storage-battery cars, the defendant extended and afforded an opportunity to the plaintiffs to perform the contract without an abandonment of the subscription, and that the construction of the second line was under and in reliance upon the subscription; that the terms of the -contract were complied with and was ratified by the defendant, and that the defendant never dissented from or protested against the construction of the second line. The defendant earnestly insists that it is not bound by the contract signed by its president and two directors, and insists upon the decision in Duke v. Markham, 105 N. C., 131, which held that a mortgage was not valid, as to third parties, which was not authorized by the majority of the'stockholders in meeting assembled, the assent of each stockholder having been given separately and at different times to a person who went around to them privately, holding that this was not the act of the corporation, and that though money was raised upon such mortgage, this would not validate it as to other creditors, since it was invalid when registered. That has no application in this case. This contract, as submitted to the jury, is between the original parties thereto and was executed by the president and two directors. There was evidence that they were acting in behalf of the corporation as their general agents, with the knowledge *674 of the company, and that subsequently when there was objection made there were changes made in the work to the knowledge of the defendant company; that its officers saw the work in progress and under the amended agreement and made no objection. There was ample evidence, if' believed by the jury, that the president and the two' directors, in making the 'contract, were acting within the scope of their authority, and that the subsequent change in the contract was ratified by the defendant, who had been benefited many times the value of the subscription by reason of the work done by virtue of this contract, and the jury, under very full and correct instructions by the court, have found their verdict in favor of the plaintiffs. The exceptions are numerous and were ably and fully presented in this Court. We have carefully considered them and do not find error therein. PLAINTIFFS’ APPEAL. On the coming in of the verdict, the plaintiffs tendered the court judgment for $10,000, with interest from 19 May, 1913, the date-of the contract. The court refused to sign the judgment tendered by plaintiffs and signed judgment for $10,000, with interest from the first day of the trial term, 5 February, 1917. The plaintiffs excepted arid appealed. Revisal, 1934, is as follows: “All sums of money due by contract of any kind whatsoever, excepting money due on penal bonds, shall bear interest; and when a jury shall render a verdict therefor, they shall distinguish the principal from the sum allowed as interest, and the principal sum due on all such contracts shall bear interest from the time of rendering judgment thereon until it be paid and satisfied.” In Barlow v. Norfleet, 72 N. C., 535, it is said: “The judge left it to the jury to give the plaintiff interest or not,'as they should think proper. We 'think he should have instructed them that if they found that defendant owed the principal sum demanded, the plaintiff was entitled to interest from the time it became due.” The jury having found for the plaintiff in the principal sum, the court should have entered judgment bearing interest thereon from the date of the contract. Jolly v. Bryan, 86 N. C., 458 (463), which says: “As this (interest on verdict), however, can be corrected by a simple calculation, it is not necessary 'to disturb the verdict, but only' to modify the judgment in this particular.” This rule is approved in Lumber Co. v. R. R., 141 N. C., 171. In an action on contract, when the jury finds the principal sum due thereon, which in'this case was $10,000 (or nothing), said sum bears interest as a mattisr of law, and the court should give interest from the *675 date of the contract, or from the time at which- it was due under the contract. Bond v. Cotton Mills, 166 N. C., 20. But when the action is in tort, the jury can allow interest or not, as it sees fit, and, therefore, when the jury does not assess interest the verdict and judgment bear interest only from the first day of the.term at which the judgment is rendered. Harper v. R. R., 161 N. C., 451; Hoke v. Whisnant, at this term. The judgment will be modified so as to bear interest from 19 May, 1913. In plaintiffs’ appeal, Modified. In defendant’s appeal, No error.