D. L. H., Inc. v. Mack Trucks, Inc.

Campbell, J. “‘On a motion for judgment of compulsory nonsuit, plaintiff’s evidence is to be taken as true, and considered in the light most favorable to him, giving him the benefit of every fact and inference of fact pertaining to the issues which may be reasonably deduced from the evidence. Plaintiff’s evidence must be considered in the [293] light of his allegations to the extent the evidence is supported by the allegations. . . Gibbs v. Light Co., 268 N.C. 186, 150 S.E. 2d 207. Applying this rule to the facts in the instant case and assuming that the motor, as delivered, was unsatisfactory, there still remains the question of whether there was competent evidence of any warranty or guarantee, other than the standard written warranty, which would be binding on Mack. The burden was on the plaintiff to establish such a warranty or guarantee, and it was incumbent upon it to show by competent evidence that Birkitt was an agent of Mack and that Birkitt had the authority to make an oral warranty or guarantee which would be binding on his principal. The plaintiff undertook to do this by introducing in evidence the portion of the answer which admitted that Birkitt was the duly appointed and authorized agent of Mack in September 1962. The plaintiff then undertook to establish the oral warranty or guarantee and the authority of Birkitt by the testimony of its witnesses, Cleve and Howell, who attempted to testify as to the conversation which they had with Birkitt at the time the truck was purchased. However, the trial court correctly sustained objections to this testimony since the plaintiff could not establish the agent’s authority against the principal through out-of-court statements made by the agent. “The existence of the agency cannot be proved by the agent’s statement out of court; it must be established aliunde, by the agent’s testimony or otherwise, before his admission will be received. The same is true, it seems, as to the fact that he was acting in the course of his agency at the time in question.” Stansbury, N. C. Evidence 2d, § 169. “Even when the fact of agency is proved by evidence aliunde the declarations of the alleged agent, the extrajudicial declarations of the agent are not competent against the principal unless it is also made to appear by evidence aliunde that the declarations were within the actual or apparent scope of the agent’s authority. . . . In the absence of proof of agency and that the act forming the basis of the action was within the scope of the agent’s authority, evidence of acts, representations, or warranties made by the agent are incompetent as against the alleged principal.” 6 Strong, N. C. Index 2d, Principal and Agent, § 4, p. 405. [294] In Commercial Solvents v. Johnson, 235 N.C. 237, 69 S.E. 2d 716, there was an analogous situation in that the agency was admitted but its extent was controverted. In that case the defense was to the failure to prove the scope and authority of the admitted agent. The Court there stated: “Conceding, but not deciding, that the excluded testimony [which consisted of extra-judicial declarations and statements allegedly made by an agent] may have probative force as tending to establish the facts alleged in the [complaint], nevertheless it would seem that no sufficient foundation was laid to make the evidence admissible. While proof of agency, as well as its nature and extent, may be made by the direct testimony of the alleged agent . . ., nevertheless it is well established that, as against the principal, evidence of declarations or statements of an alleged agent made out of court is not admissible either to prove the fact of agency or its nature and extent. . . . And in applying this rule, ordinarily the extra-judicial statement or declaration of the alleged agent may not be given in evidence, unless (1) the fact of agency appears from other evidence, and also unless it be made to appear by other evidence that the making of said statement or declaration was (2) within the authority of the agent, or (3) as to persons dealing with the agent, within the apparent authority of the agent.” In the instant case the plaintiff, who did not offer Birkitt as a witness, failed to make out a prima facie case against Mack. The proffered evidence was properly excluded since the following was not established: (a) that the excluded statements of Birkitt were made within the actual scope of his authority or (b) that, as to the plaintiff, these statements were made within the scope of his apparent authority. Commercial Solvents v. Johnson, supra; Cordell v. Sand Co., 247 N.C. 688, 102 S.E. 2d 138. Plaintiff, who asked Birkitt how he had authority to guarantee the truck, falls under the rule that “(o)ne who deals with an agent must, to protect himself, ascertain the extent of the agent’s authority.” Nationwide Homes v. Trust Co., 262 N.C. 79, 136 S.E. 2d 202. “. . . (T)he party offering evidence of the alleged agent’s admission must first prove the fact and scope of the agency of the declarant for the adverse party. This he may of course do by the testimony of the asserted agent himself, or by anyone who knows, [295] or by circumstantial evidence.” (Emphasis added) McCormick on Evidence, § 244, p. 519. In the instant case, the fact of Birkitt’s agency was proven by the admission in the answer, but the scope of this agency was not proven. The answer alleged that the truck was covered by a standard written warranty and that Birkitt had no authority to make any oral warranty or guarantee. Plaintiff failed to offer competent evidence of such authority or to prove any oral warranty or guarantee. Therefore, the trial court committed no error, in allowing the motion for judgment of nonsuit. The other questions presented need not be discussed. Affirmed. Mallaed, C.J., and MoeRis, J., concur.