S. B. Luttrell & Co. v. Martin

Clark, J.: The appeal from the refusal to dismiss the action was held premature in this case, 111 N C., 528. But the exception having been noted, now conies up for review without prejudice on this appeal from the final judgment. Guilford County v. Georgia Co., 109 N. C., 310. It was admitted that the summons had been served on the agent of the defendant corporation February 23, 1892, but the return of the Sheriff was unsigned, though indorsed in proper form on the summons. The Judge did not exceed his powers, but exercised them properly in permitting the Sheriff to sign the return mine pro tunc. Clark v. Hellen, 23 N. C., 421; Henderson v. Graham, 84 N. C., 496; Walters v. Moore, 90 N. C., 41; William v. Weaver, 101 N. C., 1. Indeed, the Sheriff had of right till the first day of that term to make the return. The Code, §200. So far as the attachment is considered .as the basis of a publication to bring the defendants into court, it is unnecessary to consider whether it was regularly sued out or not, as to the defendant corporation, since the summons was served on its agent. The Code, §217 (1). Nor as to the defendant Martin, for he submitted to the verdict and judgment and has not appealed. The affidavit to procure publication of summons must contain-an averment that the defendant “cannot, after due diligence, be found within this State.” The Code, §218. [605] But this is not required for an attachment. The Code, §349. It is because attachments are rarely issued, except against non-residents, for whom publication must be made, that the two requirements are often confused. It is not requisite, and therefore need not be averred, that the defendant cannot be found in the State in order to procure a warrant of attachment. The head-note in Sheldon v. Kivett, 110 N. C., 408, is misleading. It was the order of publication which was there amended. In fact, in some instances, as in the present, an attachment may issue against a resident of the State or a domestic corporation. Even had the motion to dismiss the attachment been improperly refused in this case, merely the judgment in that respect would have been modified. Being an ancillary remedy, this would not have affected the regularity of the proceedings and verdict, nor of the judgment in other respects. The issues tendered by the defendants were preferable to those actually submitted, but the defendants suffered no prejudice, as every phase of their case could have been and was submitted to the jury. Humphrey v. Church, 109 N. C., 132, and cases there cited. The defence set up in the answer that the contract was invalid as to defendant corporation, under The Code, §683, because not in writing, is not good, because it is an executed and not an executory contract. Curtis v. Piedmont, 109 N. C., 401; Roberts v. Wood-working Co., 111 N. C., 432. This section (683) was repealed by the Legislature of 1893. As to this appellant, certainly the Judge properly held that the cause stood for trial at Spring Term, 1893. The other defendant is not complaining. This defendant was not a non-resident, but a domestic corporation, and the affidavit for publication, February 1, 1893, against the other defendant, Martin, by the recital therein that there was then no agent of the appellant corporation in this State, [606] does not annul the Sheriff’s return, and the admission of service upon the agent of such corporation nearly a year before, on February 23, 1892. The principal contention on the merits is that the defendant corporation did not buy the goods, but that they were bought by Martin for a railroad company; and further, if bought for this company it was not bound, because the goods were railroad supplies, and this company could not act ultra vires. As to the first proposition, the jury found the fact that the goods were bought by and delivered to the defendant corporation. As to the second proposition, the company would certainly have been acting ultra vires had it attempted to build or operate a railroad, but it by no means follows that it would not be liable for railroad supplies if purchased or used by it. It would scarcely be absolved from liability for goods actually bought by it on the ground that it did not need them. But we need not decide this point, for the goods in question — powder, dynamite, etc. — were not such articles that the seller would have notice that the defendant “ Lumber, Ranch and Mining Company ” would not have need of them in its business. In fact, it might reasonably be supposed that these articles were to be used in mining, and the jury find as a fact that the plaintiffs had no notice that the goods were to be used for any other purpose. Mr. Wilson was properly allowed to testify that by authority of the treasurer and general agent of the defendant company he bought these goods of the plaintiff for said company. It is not a forbidden delegation of authority, but frequently a necessary exercise of it, when the chief officer of a corporation purchases articles for his company through an agent. The letters of the said treasurer, written subsequently, were competent evidence to corroborate the witness. This is not the case of an attempt to prove an agency by subsequent admissions of an officer. Here there [607] was direct testimony by Wilson of his purchase of the goods for the defendant company by authority of its treasurer and general manager, and the subsequent correspondence of that officer with the plaintiffs, signing himself treasurer of such company, acknowledging the receipt of goods, paying for same in part and asking time for further payment, was corroborative as ratification of the action of the purchasing agent. The last letter of the three in evidence was not signed by him as treasurer, but probably was competent in connection with the other two. At any rate, the exception being a general one as to all three letters, cannot be sustained as to one only. Smiley v. Pearce, 98 N. C., 185. The prayers for instruction, though in writing, were not asked at the close of the evidence, but much later, and were not in apt time, and cannot be considered. Grubbs v. Insurance Co., 108 N. C., 472; Taylor v. Plummer, 105 N. C., 56; Posey v. Patton., 109 N. C., 455; Merrill v. Whitmire, 110 N. C., 367. The exception that there was no evidence sufficient to go to the jury cannot bo sustained. There was the testimony of Wilson that he bought the goods for the defendant company, and the letter from the treasurer of the same afterwards enclosing part payment and asking time on the balance. The jury having found the third issue before their separation, it was no error to permit them to assemble again and write it down, especially as the Judge finds as a fact that the jury had not been influenced by what had been said to them after their separation. Petty v. Rousseau, 94 N. C., 355; State v. Shelly, 98 N. C., 673. Indeed, it was, if error, immaterial error, for the response to the third issue was a mere legal sequence, upon the pleadings and admissions, to the findings upon the first and second issues. The jury were right in deeming no response thereto necessary, for [608] the answer admitted the purchase of the goods averred in the complaint by Martin, and merely alleged that they were bought by him for another company and not for the defendant corporation. The amendment to the response to the first issue could not prejudice the appellant. It is in no worse condition in any respect than if the answer to that issue had stood as first made. Some of the recitals of fact set out by the appellant as his grounds for the motion for a new trial neither appear in the record nor are found as facts by the .Judge, and of course we cannot consider them. No Error.