Simmons v. Cherry

259 S.E.2d 410 (1979) 43 N.C. App. 499

Mercer W. SIMMONS
v.
W. P. CHERRY and W. P. Cherry and Sons, Inc.

No. 7927DC111.

Court of Appeals of North Carolina.

November 6, 1979.

Jonas & Jonas by Harvey A. Jonas, Jr., Lincolnton, for plaintiff-appellee.

John E. McDonald, Jr., Charlotte, for defendant-appellant.

WELLS, Judge.

We find that the evidence was sufficient for the trial court to have found that the defendant Cherry, in addition to the corporation, was a party to the contract with plaintiff. The plaintiff testified:

In the fall of 1974 W. P. Cherry contacted me by phone and made an appointment and then came to my office in Lincolnton.

I had not known Mr. Cherry prior to that time. I do not recall a statement as to his connection with W. P. Cherry and Sons, Incorporated. Mr. Cherry requested that I make a feasibility study and an appraisal of a proposed residential subdivision in Morganton for him. We agreed on a fee of $2,500.00. I don't recall that there was a specific discussion as to who would pay it, as to him or W. P. Cherry and Sons, Incorporated. To my best recollection, the only time that I was aware of W. P. Cherry and Sons, Incorporated, I think, was as he was leaving the office, he gave me his card which had his corporate name on there. There was the general statement to the effect that the fee would be paid when I completed the report.

* * * * * *

There were numerous telephone calls in reference to the statement with Mr. Cherry over a period of approximately twelve months, and he assured me that there would be no problem . . . of the statement being paid. He guaranteed that it would be paid, and he would see that it would be paid, [or] words of this nature.

While Cherry testified to the contrary, from the above quoted statements of plaintiff the trial court could reasonably conclude plaintiff had originally contracted with Cherry personally as well as the corporation. We note that this is not a case involving an undisclosed principal. See, Staley, Inc. v. Realty Co., 27 N.C.App. 541, 219 S.E.2d 654 (1975). We take the trial court's findings as holding that plaintiff contracted with two principals—Cherry and the corporation—and not that Cherry was merely acting as guarantor of the corporation's debt.

Our Supreme Court has held that, "[w]hether the principal is disclosed at the time of the . . . contract or afterwards discovered, the plaintiff cannot hold both principal and agent in one suit, where, as here, the complaint recognizes and alleges agency and nothing further in support of the theory of personal or individual liability" [emphasis added]. Walston v. Whitley & Co., 226 N.C. 537, 541, 39 S.E.2d 375, 377 (1946). Furthermore, ". . . a contract made by a known agent, acting within the scope of his authority for a disclosed principal, nothing else appearing, is the contract of the principal alone [citation omitted], although the agent of a disclosed principal may by special agreement bind himself to performance of the contract" [emphasis added]. Way v. Ramsey, 192 N.C. 549, 551, 135 S.E. 454, 455 (1926). See also, Restatement (Second) of Agency §§ 320-322 (1958).

The question in the present case is whether, by his statements and conduct, Cherry made an agreement with the plaintiff binding himself to performance of the contract and personal liability therefore. Plaintiff testified that Cherry requested that plaintiff, "make a feasibility study and an appraisal of a proposed residential subdivision in Morganton for him [Cherry]." [Emphasis added.]

The trial court could reasonably conclude from the evidence that the parties contemplated, at the time the contract was made, that both defendants would be responsible for the obligation to plaintiff.

The comments to § 320 of the Restatement of Agency (Second) provide:

c. Evidence. * * * [T]he fact that the other party [to the contract with the agent and principal] thereto declared that he did not care who the principal was or that he was satisfied with the credit of the agent is evidence that it was agreed that the agent was a party to the contract. In such cases, it is for the triers of fact to determine what the parties intended.

Findings of fact made by the court in a non-jury trial are conclusive on appeal if supported by any competent evidence, even though there is evidence which might support findings to the contrary. Henderson County v. Osteen, 297 N.C. 113, 254 S.E.2d 160 (1979). Our Supreme Court has held that an agent for nonresident bidders for an issue of county bonds was personally liable to the county for a forced resale of the bonds where the agent endorsed the bonds, gave his own note, actively participated in the transaction, and assured and guaranteed to the county commissioners the principals' performance. Caldwell County v. George, 176 N.C. 602, 97 S.E. 507 (1918).

Since we conclude that the trial court had sufficient evidence before him to reasonably conclude that agent Cherry agreed to make himself a party to the contract, the rule that the plaintiff may not hold both the principal and agent liable in one suit is inapplicable. Walston v. Whitley & Co., 226 N.C. 537, 39 S.E.2d 375 (1946). In view of this holding we need not reach defendant Cherry's argument that any oral guarantee he might have given plaintiff to pay the corporation's debt is not enforceable.

Affirmed.

ARNOLD and WEBB, JJ., concur.