McArthur v. . Byrd , 213 N.C. 321 ( 1938 )

Per Curiam:.

This cause does not involve an executory contract. The defendants do not claim the right to any timber standing and growing upon the premises of the plaintiff. It follows that the fact that the sale to the defendants was not in writing is immaterial. At the time the defendants received the timber in controversy it had been converted into personal property.

There is ample evidence in the record to sustain the answer of the jury to the second issue and which tends to show that Adam McArthur was in fact the general agent of the plaintiff in the supervision of said farm, the sale of crossties, timber and crops therefrom. So that, under the verdict of the jury the plaintiff is bound by the acts of his agent in collecting from the defendants the agreed market price of the timber received by them.

It would seem that the verdict of the jury is incomplete. There is no finding that the defendants are, or are not, indebted to the plaintiff for timber the defendants received from the plaintiff through his agent Adam McArthur or Marvin Hobbs, who was cutting the timber under contract with Adam McArthur. In view of the record herein, however, the failure of the court below to have the jury to answer the sixth issue is harmless error. The plaintiff offered evidence, which is uncontra-dicted, that the defendants paid Adam McArthur the prevailing market price for the timber received by them. This being true, the court below would have been fully warranted in charging the jury to answer the sixth issue “Nothing.” His failure to do so cannot be held for reversible error.

We have examined the other exceptive assignments of error contained in the record and find in none of them sufficient cause to disturb the judgment below.

No error.