Brown v. . Miensset , 123 N.C. 371 ( 1898 )

In 1893 the Carolina Investment Company leased to the defendants the Round Knob Hotel and grounds in McDowell County for five years for a certain annual rental. The property had been sold by J. W. Wilson to the company for stock in the same, but the deed had not been registered. The plaintiff claimed to be the owner of the contract of lease, and this action was brought to recover an amount then alleged to be due under it. On the trial J. W. Wilson, a witness for the plaintiff, had proceeded to testify concerning an agreement he had had with the company, by which he came into the possession of the lease contract, when the defendant Frisard objected and insisted that the witness should show with whom the agreement was made and their authority to bind the company. The objection was sustained, (377) and the witness testified, in substance, as follows: "That he first spoke to all the officers of the company, except the president, upon the matter of agreement hereinafter mentioned, and that they all expressed their consent; that the agreement was finally made and carried out by and between the witness on the one hand and J. R. Ervin, vice-president, S. T. Pearson and W. C. Ervin, directors of the company on the other, by which said deed was surrendered to Wilson, and Wilson surrendered his stock to the company, and the contract of lease was assigned and delivered without written endorsement to Wilson, who was to receive the rents under and assume the obligations imposed upon the company by said contract of lease; said lease was transferred by Wilson by the following endorsement: ``Pay R. W. Brown — James W. Wilson.'"

The plaintiff rested his case upon that evidence without offering to show further the authority of the vice-president and the two directors of the company, Pearson and Ervin, to act for and bind the company in the transaction; nor did the defendant ask the court to exclude the evidence on that ground.

The defendant Frisard proposed to show that at a time prior to the delivery of the lease to Wilson he agreed with the same officers who made the agreement with Wilson that if he (Frisard) would procure one C. C. Miller to sign the lease contract and notes therein referred to, and to pay $250 then due under the contract the defendant should be discharged from all liability on the lease contract, and that this agreement was prior to the delivery of the lease to Wilson, carried into effect defendant Frisard on the one hand and the said officers (Ervin, (378) vice-president, and Pearson and Ervin, directors, claiming to act in behalf of the company) on the other hand. There was objection to the proposed evidence on the part of the plaintiff on the ground that the authority of the officers to bind the company had not been shown by the witness. "The court inquired of plaintiff's counsel whether he did not, in order to recover, contend that these officers had the power to make the contract with Wilson by which the lease was assigned, and counsel stated that he did; thereupon the court stated that if plaintiff relied upon the assignment of the lease by said officers without authority to act for the company, the defendant should be permitted to show that he had been released from liability by the same officers, and admitted the proposed evidence." The plaintiff excepted.

The objection to the evidence complained of is founded on the decisions of this Court in the cases of Edwards v. Phifer, 121 N.C. 388, and Phiferv. R. R., 122 N.C. 940. In the latter case, on the cross-examination of the plaintiff as a witness for himself, the defendant's counsel asked the witness if he was careful while at work on the bridge, and he answered that he was. On the reexamination of the same witness he was asked by his own counsel if he was careful, and the answer "Yes" was allowed over the objection of the defendant on the ground that the defendant had drawn precisely the same evidence from the witness, and that that was only a repetition of the same evidence. This Court, however, held on the appeal that the objection ought to have been sustained.

But the case before us presents a much larger question than one of evidence. The plaintiff's right to recover rests upon the power of the vice-president and the two directors named to make the agreement by which the lease contract was assigned and delivered to Wilson. (379) This is apparent from the evidence of the plaintiff as well as by the manner in which the evidence was brought out. The counsel of the plaintiff on the trial below, as we have seen, admitted that the plaintiff's right to recover depended upon the power of the officers above named to make the assignment and delivery of the lease contract. That being so, the court below was clearly right in allowing the defendant to show a release and discharge by the same officers who had made the contract with Wilson, the assignor of the plaintiff.

No error.