Nolen Concrete Supply, Inc. v. Buchanan ( 1985 )

PHILLIPS, Judge.

Before the case went to the jury defendant requested that an issue be submitted as to whether plaintiff and defendant entered into a contract with respect to the purchases by Buchanan; this request was denied and the issue submitted by the court was whether Buchanan had actual or apparent authority from Bohan-an to make the purchases involved. This action by the court is the basis for assignments of error contending that the court erred not only in refusing his issue and in submitting the agency issue, but in charging the jury thereon and in denying his motions for a directed verdict, for judgment notwithstanding the verdict, and for a new trial. All these assignments are based on the premise that the issue raised by the pleadings and evidence was whether plaintiff and defendant Bohanan entered into a contract covering the purchases made by defendant Buchanan, rather than the agency issue that the court submitted. While the contract issue defendant proposed could have been properly submitted to the jury the court’s failure to submit it was not prejudicial error, in our opinion, because the pleadings and evidence also raised the issue submitted and the record indicates that the trial had on that issue was not unfair to defendant. Therefore, all of these assignments fail, in our opinion, and we overrule them.

The form and number of the issues is within the sound discretion of the trial judge; and when the issues submitted cover the factual matters disputed under the pleadings and enable the parties to fairly present their contentions in regard to them it is not error to refuse to submit other issues. Miller v. McConnell, 226 N.C. 28, 36 S.E. 2d 722 (1946). The agency issue that the court preferred and submitted meets these requirements. The tenor of plaintiffs complaint is that defendant Bohanan authorized plaintiff to accept Buchanan’s orders and held him out as being his authorized agent and its evidence was also to that effect. While plaintiff could have justifiably cast his action in contract and sued for breach, the law did not require him to do so. The doctrine of apparent as well as actual authority to act for another is a recognized legal vehicle for imposing liability. Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E. 2d 795 (1974); 2A C.J.S. Agency Sec. 161 (1972). The agency issue which the court submitted enabled defendant to fully develop and present his contentions that no authority had been given to Buchanan to buy concrete on his account and that no agency existed. The court’s instructions on the issue correctly stated the law and required the jury to consider defendant’s contentions; and nothing in the record indicates that the instructions were disregarded or that the trial would have ended differently if it had been tried on the issue defendant requested.

The defendant’s other assignments of error, which require no discussion, are also without merit and we overrule them.

No error.

Judges WELLS and Whichard concur.