Russell v. . Koonce ( 1889 )

The plaintiff brought this action against the defendant and one Anthony Davis, to recover compensation for professional services rendered Davis, upon the request of the defendant Koonce, who, it was alleged, was authorized to contract for Davis in that behalf.

Davis denied that he ever employed the plaintiff or authorized his codefendant to do so, and Koonce, admitting that Davis had given him no such authority, and that he had requested the opinion of the plaintiff upon the matter submitted, denied the existence of any contract, express or implied, on his part, to pay for said services. He further pleaded, by way of counterclaim, new matter, arising out of another transaction with plaintiff, and occurring subsequent to the plaintiff's cause of action, to which plaintiff interposed a demurrer. The demurrer was properly sustained to the defendant's counterclaim, and that for the reason stated, that it arose out of transactions occurring after the institution of the action as appears upon its face. The refusal to allow an amendment, which, as defendant insisted, would connect it with the plaintiff's (241) cause of action, was unreviewable exercise of a discretionary power vested in the judge. The responses of the jury to the issues submitted to them, without objection, cover the entire ground of controversy.

The writings which, as exhibit "A," are annexed to the case, were not offered in evidence during the trial, nor were any instructions asked for by the appellant until the jury, after hearing the charge, had retired, and at this stage of the trial these papers were offered to be heard and the presiding judge declined to receive them. In this there is no error.

The pleadings and the evidence show no personal contract to have been entered into by the appellant to bind himself to pay for the professional services desired, but he represented himself as authorized by Davis, who had the benefit of them, to employ the plaintiff, and throughout he professed to act as agent only. The defendant does not become individually liable because his authority to bind his principal is disowned by the latter, unless the consideration is received by the agent, out of which arises an implied promise to pay. Potts v. Lazarus, 4 N.C. 180; Delius v.Cawthorn, 13 N.C. 90. In such case the agent may become personally answerable upon the contract, but otherwise the action must be for damages for his false assumption of authority to act.

The present action proceeds upon the idea that, if the principal be not bound, the agent is, for the services rendered; or, in other words, if the contract does not bind the one, it binds the other. The result in damages may be the same, but the liability does not rest upon any such foundation, for the obvious reason that no such personal contract is formed. No objection is made on this score, and we let the judgment stand, as no exception is taken, but with the explanation made above. There is no error, and the judgment is

Affirmed.

Cited: LeRoy v. Jacobosky, 136 N.C. 449.

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