Clowe v. Imperial Pine Product Co. , 114 N.C. 304 ( 1894 )

The plaintiff sued the defendant company to recover the sum (305) of $112 alleged to be due the plaintiff by the defendant for the board of two workmen furnished by the plaintiff under an alleged contract with the defendant to pay for the same. The suit was brought to recover on a quantum meruit under contract executed.

The contract was denied by the defendant.

The defendant asked the court to charge the jury, as a matter (308) of law, that if the defendant was liable at all under the contract, it was only liable to the extent of what the plaintiff's regular prices for board were, by the month; that these workmen, having remained for as long a period as two months, were not, in contemplation of law, transient boarders, but regular boarders, and that the law treated them as such.

The court refused to give the instruction prayed by the defendant, and charged the jury instead that if the evidence of the plaintiff's witnesses was to be believed the defendant company would be liable, and it was for the jury to say, from all the facts and circumstances testified to, what the plaintiff was entitled to recover.

The jury answered the first issue "Yes" and the second issue "$112."

The court thereupon gave judgment for the plaintiff for $112, with interest and costs, and defendant appealed. The plaintiff relies upon an executed contract and sues for the reasonable value of her services to defendant in boarding for the time stated two of its employees at the request of its superintendent and general manager. The defendant's first defense is that the contract was not reduced to writing under section 683 of The Code (since repealed) and therefore cannot be enforced.

It was held in Curtis v. Piedmont Co., 109 N.C. 401, that this statute was applicable to executory and not executed contracts. (309) And this upon the sound doctrine that the defense of ultra vires will not avail when the contract itself has been in good faith fully performed by the other party, and the corporation has had the full benefit of the contract. 2 Beach Pr. Cont., sec. 424.

Upon the second and third grounds of defense that there was no proof that the contract was made on behalf of defendant, nor that, if so made, the general manager had authority to make such contract, we think that in the absence of proof to the contrary in a particular instance, the general scope of the corporate business of a corporation such as defendant would include the board of its employees, and the corporation is always liable on a contract made by its manager and superintendent within such scope. The testimony clearly pointed to the fact that the service was to be performed for the corporation and not for the manager.

Indeed, it seems from the testimony that the only real contention of defendant was as to the value of the services. This was submitted to a jury; his Honor was asked to charge the jury that plaintiff could not, under the circumstances, recover more than regular prices for board by the month, not for transient board. As no specified time was agreed upon for which the men were to be taken, and there was testimony of extra services rendered them, it was properly left to the jury to settle the amount the plaintiff was entitled to have, and there is

No error.

Cited: Pinchback v. Mining Co., 117 N.C. 488; Morris v. Basnight,179 N.C. 302.

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