Citation Numbers: 18 S.E. 327, 113 N.C. 344
Judges: AVERY, J.
Filed Date: 9/5/1893
Status: Precedential
Modified Date: 1/13/2023
Shortly after the beginning of the action J. J. Jordan died intestate and P. B. Picot and John E. Vann were duly qualified as his administrators, and were made parties plaintiff in this action.
At Fall Term, 1890, judgment was entered in said action in favor of plaintiffs for possession of said land, and for a foreclosure of said mortgage, as appears from the record, and the case was continued to try the issue of damages. Pending this continuance, and on the 31st day of January, 1891, the plaintiff, P. B. Picot, one of the administrators of the said J. J. Jordan, entered into the following agreement with the defendant, H. McD. Spiers, to wit:
"Received this 31 January, 1891, of H. McD. Spiers the sum of $100, it being in part payment of a compromise of the suit (345) *Page 254 now pending in Hertford County Superior Court, entitled Mary E. Jordan and P. B. Picot and John E. Vann, administrators of J. J. Jordan, against H. McD. Spiers; and the said suit is compromised on the following terms and conditions, viz: Said Spiers is to pay all costs of said action at the time that a nonsuit is entered by said Picot and Vann, administrators. $100 cash, and $137.50 to be paid on or before 19 October, 1891, with interest from this date at 8 per cent. It is specially understood and agreed by parties hereto that if said Spiers shall make the deferred payments at the time named, with the interest thereon accrued, said Picot and Vann, administrators, shall enter a nonsuit in said pending action, at Fall Term, 1891, of said Superior Court; but if said Spiers shall fail to make said deferred payment, with interest as aforesaid, at the time mentioned, said Picot and Vann, administrators, may proceed with said suit as they may be advised, and the $100 paid this day by said Spiers, shall, in the event that judgment is taken against him in said action, be deducted from said judgment, that is to say that the $100 shall be credited on said judgment.
"PICOT and VANN, Admrs.
"H. McD. SPIERS.
"This 31 January, 1891."
That thereafter, during the interval between the Spring and Fall Terms, 1891, of said court, P. B. Picot died, leaving his coadministrator, John E. Vann, surviving him.
That said contract was written and signed "Picot and Vann, Admrs.," without the knowledge or consent of said John E. Vann.
At Spring Term, 1891, of said court, this action was called for trial before Bynum, J., and a jury The verdict was in favor of (346) plaintiffs. The plaintiffs moved for judgment thereon against defendant and Sampson Rea, the surety on defendants' undertaking.
Rea answered said motion, and alleged his discharge, and set up said compromise agreement and brought out the above facts in reference thereto, and asked that the plaintiffs' motion as to him be denied.
The court ruled that said Rea was not discharged, and granted the judgment found in the record. Said Rea excepted, and appealed.
In discussing the power of one of several personal representatives to act for his associates, in the case of Gordon v. Finley,
We fail to discover in the statement of the case on appeal any evidence tending to show a subsequent ratification by Vann of the agreement entered into by Picot, his coadministrator, without his knowledge or consent. It does not appear affirmatively that Vann was consulted as to the application of the one hundred dollars paid down. When the agreement was subsequently set up by answer in the nature of a plea since the last agreement, the defendants refused in their reply to recognize it, denominating it an alleged agreement. After Picot had received the money without the consent of Vann, and presumably paid it over *Page 256 to the persons lawfully entitled to receive it, we cannot readily conceive of any step other than the expression of his dissent in the (348) replication filed, that it was incumbent on Vann to take, in order to show affirmatively that he repudiated the unauthorized conduct of his associate. If the money was within his control, he still claimed a balance due from Spiers for rent, in any view of the situation, amounting to more than one hundred dollars, and he was not authorized to refund the sum paid to Spiers when such was the state of accounts between Spiers and his intestate. It does not appear that Vann assented to a single continuance from the time he filed his reply repudiating the agreement until the trial term, when the court allowed the payment as a credit on the amount of damages for rents and profits found by the jury. The only positive act of Vann in relation to the matter was the filing of the reply, in which both he and Mary Parker joined, and in which the agreement set up was denominated an alleged agreement.
If the plaintiffs are bound by the contract made by Picot, it must be by reason of some positive act of affirmation or adoption of the agency of Picot by Vann after being informed of what he had done. No such act has been shown. The judgment of the Superior Court is
Affirmed.