Mathis v. Siskin , 268 N.C. 119 ( 1966 )

150 S.E.2d 24 (1966) 268 N.C. 119

E. J. MATHIS, doing business as Asheville Elevator Service,
v.
Morley SISKIN, and Jack Schulman and wife, Evelyn Schulman.

No. 129.

Supreme Court of North Carolina.

September 21, 1966.

Prince, Jackson, Youngblood & Massagee, Hendersonville, Williams, Williams & Morris, by Ann H. Phillips and William C. Morris, Jr., Asheville, for appellant.

Van Winkle, Walton, Buck & Wall, by O. E. Starnes, Jr., Asheville, for appellees.

LAKE, Justice.

There was no error in the denial of Jack Schulman's motion for judgment of nonsuit. The contract states expressly that the "Owner" agrees to make payments of the purchase price and identifies "Owner" as Jack Schulman and wife. Siskin testified that he was acting as Schulman's agent and Schulman instructed him to have this contract prepared and to sign it for him. The plaintiff testified that Schulman telephoned him and cancelled the contract the day before the equipment arrived. Siskin corroborated this. The plaintiff's Exhibit 6, a letter written by his attorney to Schulman three days after the telephone conversation, was an election by the plaintiff to treat Schulman's anticipatory renunciation of the entire contract as an immediate breach and to sue for damages. See Pappas v. Crist, 223 N.C. 265, 25 S.E.2d 850; Edwards v. Proctor, 173 N.C. 41, 91 S.E. 584. The plaintiff testified specifically as to the damages sustained by him as a result of the breach. Thus, the plaintiff's evidence, taken to be true and considered in the light most favorable to him, as it must be upon a motion for judgment of nonsuit (Firemen's Mutual Insurance Co. v. High Point Sprinkler Co., 266 N.C. 134, 146 S.E.2d 53), is sufficient to establish each element of his alleged cause of action against Jack Schulman. The latter's testimony contradicting the plaintiff's evidence as to these various matters raised a question for the jury, which the jury resolved in favor of the plaintiff.

Upon the circumstances shown in this record, there was no error in admitting the testimony of the plaintiff that he had a telephone conversation with Jack Schulman in which Schulman stated he was cancelling the contract. Testimony by the recipient of a telephone call as to the nature of the conversation is not admissible, over objection, without identification of the other party to the conversation by some means other than such party's own statement of his name in the course of the call. A. T. Griffin Manufacturing Co. v. Bray, 193 N.C. 350, 137 S.E. 151. However, when the plaintiff testified that he received a telephone call from Jack Schulman, the defendant did not seek permission to examine the plaintiff as to the identification of the caller before the plaintiff proceeded to testify as to the content of the conversation. Under these circumstances, it was not error to permit the plaintiff to testify as to what the caller said in that conversation. Plaintiff's testimony thereafter, on cross examination, that he had talked to Jack Schulman previously, but not on the telephone, that he did not know Schulman's voice well enough to know positively that it was Schulman who had called, and that all he knew about it was that someone, who said he was Jack Schulman, called him, would go to the credibility of his earlier testimony identifying the caller, but would not require the allowance of the defendant's motion to strike the direct testimony concerning the content of the conversation. See Stansbury, North Carolina Evidence, § 96. Furthermore, the plaintiff's identification of the person talking to him on the telephone is corroborated by the deposition of Siskin stating that, about the date of this telephone call Schulman told Siskin he had cancelled the installation of the elevator.

There is no merit in the numerous exceptions to the rulings of the court permitting Siskin to testify that he was acting in the negotiations of this contract as agent for Schulman and that Schulman authorized him to make the contract. While extra-judicial declarations of a purported agent are not admissible to show the existence of the agency or the extent of his authority to contract, the alleged agent is competent to testify that the agency existed, that he was authorized by the principal to make the contract in question, and that in making it he was acting as such agent in the principal's behalf. Sealey v. Albany Insurance Co., 253 N.C. 774, 117 S.E.2d 744.

The court's instruction to the jury that "[A]n agent is acting in the course of his authority of his agency, when he is engaged in that which he was employed to do and is at the time about his principal's business," standing alone, would not be a correct statement of the test of an agent's authority to bind the principal by contract. This statement relates to the test for determining the principal's liability for the agent's tort. However, this statement in the charge is preceded and followed by correct and adequate statements of the law governing the liability of the principal upon a contract made for him by an alleged agent. Thus, when the entire charge is considered, we are of the opinion that the jury could not have been misled by the portion to which the defendant has excepted. The exception is, therefore, overruled. Gathings v. Sehorn, 255 N.C. 503, 121 S.E.2d 873; In re Will of Crawford, 246 N.C. 322, 98 S.E.2d 29; Barnes v. Caulbourne, 240 N.C. 721, 83 S.E.2d 898; Vincent v. Woody, 238 N.C. 118, 76 S.E.2d 356.

The defendant also excepts to the court's instruction that "[T]he breach which is alleged is what is known as an anticipatory breach, that is, a breach of the contract while the contract was still executory, before either side had performed it in full." While, as the defendant contends in his brief, this is not an accurate definition of an anticipatory breach of a contract, it does not appear that the defendant has been prejudiced in any way by this inaccuracy. The context in which this statement appears in the charge includes a statement of sufficient clarity as to what acts by Schulman would constitute a breach of the contract by repudiation of it in advance of an attempt by the plaintiff to perform so as to make such attempt by the plaintiff unnecessary. The portion of the charge to which this exception is directed is not, in our opinion, prejudicial error justifying a new trial of this action and this assignment of error is, therefore, overruled.

The remainder of the appellant's 81 assignment of error are deemed abandoned since his brief contains no authority or discussion relating thereto. Rule 28 of the Rules of Practice in the Supreme Court.

No error.