Nicholson v. . Dover

CLARK, C. J., not sitting. The defendant owned twenty-nine-thirtieths of the land described in the complaint, and B. B. Nicholson owned one-thirtieth. Each owner seemed desirous of owning the entire tract or of selling his interest therein. Negotiations were conducted with Dover, who was a resident of Pennsylvania, by B. B. Nicholson, through W. B. Rodman, who was Dover's agent and attorney. The negotiations are embodied in twenty-two letters passing between Dover and Rodman and B. B. Nicholson, all of which are set out in the record, and which it is unnecessary to do more than refer to. These letters comprise the basis of the plaintiff's action. The defendant contends that there is no sufficient contract, in writing or memorandum, or note thereof, within the requirements of the statute of frauds. Besides other letters, which it is unnecessary to refer to, we think there are two which plainly authorized Rodman to enter into a contract to sell the defendant's interest in the land. On 24 May, 1905, defendant wrote Rodman: "Now, I want to sell, if possible, and I want you and Mr. Nicholson to give me the very highest cent that he will pay me for the land in Chocowinity; then I will give you and him a definite answer, and we can settle all right." In the letter of 21 June, 1905, the authority to sell is confirmed. After further correspondence, Dover gives Rodman, in his letter of 1 July, 1905, express authority to sell the land to B. B. Nicholson upon a basis of $1,800 for the whole tract — that is to say, Dover was to have twenty-nine-thirtieths of the $1,800 for his interest. This proposition was accepted by B. B. Nicholson in his letter of 30 July, 1905, to Rodman in behalf of his principal, P. A. Nicholson, the plaintiff. We think the letters set out in the record are a sufficient compliance with the requirements of the statute. It has always been held that letters addressed to a third party, stating and affirming a contract, may be used against the writer as a memorandum of it. Brown on Statute of Frauds, sec. 354a, and cases cited. Such writings are sufficient evidence of the contract to warrant the court in giving effect to it. Mizell v. Burnett, (20)49 N.C. 254. The principal contention of the learned counsel for defendant is that, although Rodman might have been vested with ample power to sell, the authority was to sell to B. B. Nicholson and not to this plaintiff.

The correspondence, as well as the testimony of B. B. Nicholson and P. A. Nicholson, proves that the negotiations for the purchase of Dover's interest in the lands was conducted by B. B. Nicholson for the plaintiff, and that the offer of Dover, made through Rodman, was accepted by B. B. Nicholson for plaintiff. This was well known to Rodman, and the fact that he failed to disclose it to Dover will not avoid the contract of sale or relieve Dover from its performance. Assuming that, so far as Dover is concerned, the plaintiff is an undisclosed principal as to him, yet the plaintiff may enforce the contract made on his behalf by B. B. Nicholson, his agent. The right of a principal to maintain an action on a written contract made by his agent in his own name, without disclosing the name of the principal, is well settled. Oelrichs v. Ford,21 Md. 489; Towboat Co. v. Tel. Co., 52 S.E. 766 (Ga.); Cowan v.Fairbrother, 118 N.C. 406. If Dover had personally conducted this correspondence directly with B. B. Nicholson, who was acting for the plaintiff, an undisclosed principal, the latter could enforce the contract as against Dover. The fact that he conducted it through his agent will not alter the case. "It is a well established rule of law that when a contract, not under seal, is made with an agent in his own name for an undisclosed principal, either the agent or the principal may sue upon it, the defendant in the latter case being entitled to be placed in the same position at the time of the disclosure of the real principal as if the agent had been the real contracting party." Barnham v. Bell,112 N.C. 133; Ewell's Evans on Agency, 379; Story on Agency, 420; Wharton on Agency and Agents, 403. The defendant authorized Rodman to sell to B. B. Nicholson upon certain terms. The agent, not exceeding the authority conferred upon him, contracted to (21) sell to B. B. Nicholson according to the instructions given him. B. B. Nicholson was acting, so it turns out, as the agent of the plaintiff, whose interest was not disclosed to defendant. Under these conditions the acts of the agent, Rodman, are equally binding upon the principal, Dover, as if the principal had done the act himself. In other words, so long as Rodman was obeying his instructions in selling to B. B. Nicholson, it made no difference whether the contract was made directly by Dover, the principal, or through Rodman, the agent; the effect would be the same. The principal is liable where the agent acts within the scope of his apparent authority, provided a liability would attach to the principal if he were in the place of the agent. Navigation Co. v. Bank, 47 U.S. 344; Ford v.Williams, 62 U.S. 287. The law is stated very clearly by the Supreme Court of Georgia, as follows: "When an agent makes a contract without disclosing the name of his principal, the principal may claim all his rights, with the single limitation that the other party shall not be injured thereby." Woodruff v. McGehee, 30 Ga. 158.

It follows that, if Rodman, acting for the defendant and within the scope of his powers, made a valid contract with B. B. Nicholson, and the latter at the time was acting for the plaintiff, the latter may enforce the contract against the defendant to the same extent that B. B. Nicholson could enforce it, although the defendant had no knowledge at the time of plaintiff's interest. The defendant has in no way been injured. Whatever equity or claim the defendant could set up against the agent he could set up against the principal when he was disclosed. In this case the defendant has no grievance against either. He simply declines to carry out his valid contract, made by an authorized agent, because, as he writes Rodman on 11 September, 1905, he had just received an offer of $2,000 cash for the land. The personality of the purchaser was not the (22) ground of plaintiff's refusal, but the fact that he could get a higher price. Taking the evidence to be true, the plaintiff is entitled in the Superior Court to a decree for specific performance.

Reversed.

CLARK, C. J., did not sit.

Cited: Combes v. Adams, 150 N.C. 68; Winslow v. Staton, ib., 267;Peanut Co. v. R. R., 155 N.C. 151; Archer v. McClure, 166 N.C. 148;Hardware Co. v. Banking Co., 169 N.C. 749; Woodard v. Stieff, 171 N.C. 82;Springs v. Cole, ib., 419.