Albertson v. Jones

257 S.E.2d 656 (1979) 42 N.C. App. 684

Leslie J. ALBERTSON
v.
Stella JONES.

No. 788DC1012.

Court of Appeals of North Carolina.

September 4, 1979.

No counsel for plaintiff-appellee.

Gerrans & Spence by William D. Spence, Kinston, for defendant-appellant.

HEDRICK, Judge.

Defendant assigns as error the refusal of the trial judge to grant her motion for a directed verdict made at the close of the plaintiff's evidence and renewed at the close of all the evidence. Defendant argues that there was no evidence that Bonnie Jones was the agent of the defendant or authorized to procure the tobacco floater insurance policy, and thus she is entitled to a directed verdict. We agree.

One who seeks to enforce against an alleged principal a contract made by an alleged agent has the burden of proving the existence of the agency and the authority of the agent to bind the principal by such contract. Godwin Building Supply Co., Inc. v. Hight, 268 N.C. 572, 151 S.E.2d 50 (1966); Bell v. Traders and Mechanics Insurance Co., Inc., 16 N.C.App. 591, 192 S.E.2d 711 (1972). The marital relationship raises no presumption that the husband is authorized to act as an agent for his wife, and if such agency is relied upon, it must be proved. Beaver v. Ledbetter, 269 N.C. 142, 152 S.E.2d 165 (1967). Agency is a fact to be proved as any other, and where there is no evidence presented tending to establish an agency relationship, the alleged principal is entitled to a directed verdict. Lindsey v. Leonard, 235 N.C. 100, 68 S.E.2d 852 (1952); Smith v. VonCannon, 17 N.C.App. 438, 194 S.E.2d 362, aff'd., 283 N.C. 656, 197 S.E.2d 524 (1973).

In the present case, the plaintiff has neither alleged nor offered any evidence that Bonnie Jones, the defendant's husband, was acting as the defendant's agent in procuring the tobacco floater insurance policy. The statement by the plaintiff that the defendant's husband was making the application for the insurance "on behalf of his wife" tends only to show that the plaintiff believed Bonnie Jones to be so acting; it does not tend to establish the factual existence of any agency relationship between the defendant and Bonnie Jones. Furthermore, such a statement from one seeking to enforce against an alleged principal a contract made by the alleged agent would not be competent evidence to prove the existence of the agency relationship. The existence of the agency also cannot be proved by the agent's extrajudicial statements. It must be established aliunde or by the alleged agent's testimony. Mathis v. Siskin, 268 N.C. 119, 150 S.E.2d 24 (1966); 2 Stansbury's N.C. Evidence § 169, at 19 (Brandis rev. 1973).

Since there is no evidence that the defendant contracted to purchase the insurance, and since there is no evidence that her husband was acting as her agent in purchasing the insurance, the trial judge erred in not directing a verdict for the defendant. The judgment appealed from is reversed.

Reversed.

VAUGHN and ARNOLD, JJ., concur.