Brown v. . Benton , 209 N.C. 285 ( 1936 )

Civil action to recover for car of lumber shipped by plaintiff to B. L. Johnson Company, Inc., at the instance and request of individual defendants.

The plaintiff originally sought to hold the corporate defendant, as well as the individual defendants, liable for the lumber shipped, but over objection was allowed to amend and declare upon an original promise made by the individual defendants. A voluntary judgment of nonsuit was then taken as to the corporate defendant.

Plaintiff testified: Just prior to 29 March, 1929, Bransom Benton and R. G. Finley came to may lumber plant and ordered two or three cars of dry white pine lumber shipped to B. L. Johnson Company, Inc., at Roaring River. They paid for the first car, shipped 26 March, but not for the second, which was shipped on 9 May. The second car is the one now in suit. The balance due on this car is $546.89, with interest from 9 June, 1929. The understanding was that I should ship and bill the lumber to B. L. Johnson Company, "and they would be personally responsible to me." Just prior to 9 May, 1929, Mr. Benton came down there and said they would need another car, the same as I had shipped before. He said: "The arrangement is you are to ship it and Finley and myself will be responsible for it." I knew that Benton and Finley took over the B. L. Johnson Company. They were the main stockholders.

From a verdict and judgment for plaintiff against the individual defendants they appeal, assigning errors. Appellants in their brief seek to avoid liability on the ground that the contract alleged to have been breached is a collateral agreement, resting in parol, and therefore not enforceable under the statute of frauds. C. S., 987. All the evidence is to the contrary. Newbern v. Fisher, 198 N.C. 385,151 S.E. 875.

Plaintiff has declared upon an original promise not within the statute of frauds. Dozier v. Wood, 208 N.C. 414; Peele v. Powell, 156 N.C. 553,73 S.E. 234, on rehearing, 161 N.C. 50, 76 S.E. 698; Sheppard v.Newton, 139 N.C. 533, 52 S.E. 143.

The only point mooted on trial was whether the promise of the defendants went beyond the first car of lumber and included the second. The jury found that it did. This was an issue of fact determinable alone by the twelve.

The defendant Finley resists recovery on the ground that he was not present when the second car was ordered, and that Benton was not authorized to speak for him at that time. The jury found, however, under proper instructions, that the original authorization, given by both of the individual defendants, was sufficient to cover the second as well as the first car.

The record is free from reversible error, hence the verdict and judgment will be upheld.

No error.