Barger v. Krimminger

138 S.E.2d 207 (1964) 262 N.C. 596

John V. BARGER and Clyde R. Brawley, t/a John V. Barger and Company,
v.
James C. KRIMMINGER, Harry Williamson and Robert T. Medlock, Trustees of Kilgo Methodist Church.

No. 252.

Supreme Court of North Carolina.

October 14, 1964.

Collier, Harris & Collier by T. C. Homesley, Jr., Morresville, for plaintiffs.

Winfred R. Ervin, Charlotte, for defendants.

PER CURIAM.

The judgment of nonsuit must be affirmed. The oral contract upon which plaintiffs sue was allegedly made on July 11, 1959. It was therefore superseded by the written agreement executed by the parties on July 13, 1959, and was incompetent to contradict or vary the terms of the written contract. Piedmont Gas Company v. Day, 249 N.C. 482, 106 S.E.2d 678; Williams v. McLean, 220 N.C. 504, 17 S.E.2d 644. Furthermore, if we were to assume the agency of the building committee— which we may not, Sledge v. Wagoner, 250 N.C. 559, 562, 109 S.E.2d 180, 183; Commercial Solvents v. Johnson, 235 N.C. 237, 240, 69 S.E.2d 716, 719— the testimony of plaintiff Barger discloses that he dealt with a committee whose authority to contract, he knew, was limited to $200,000.00. It could not bind Church to pay more. "One dealing with an agent or representative with known limited authority can acquire no rights against the principal when the agent or representative acts beyond his authority or exceeds the apparent scope thereof." Texas Co. v. Stone, 232 N.C. 489, 61 S.E.2d 348. Finally, plaintiffs' evidence discloses that at the time the construction loan was closed, Barger signed a lien waiver and accepted and cashed a check which stated on its face that it was in full payment of his contract. Moore v. Greene, 237 N.C. 614, 75 S.E.2d 649. It clearly appears that appellants, under any aspect of their evidence, are not entitled to recover.

It is noted that during the trial plaintiffs took no exception to the exclusion of much of their proffered evidence. In the case on appeal, however, "appellants assert `exception' by reason of G.S. 1-206." This section protects a litigant whose objection to the admission of evidence is overruled. "It makes no provision for the protection of the adversary party who sits by and fails to except when an objection to evidence is sustained." Cathey v. Shope, 238 N.C. 345, 78 S.E.2d 135.

Judgment affirmed.