Bone Intern., Inc. v. Brooks

• Citation: 51 N.C.App. 183,275 S.E.2d 556
• Decision Date: 17 March 1981
• Docket Number: No. 807DC593,807DC593
• Parties: BONE INTERNATIONAL, INC. v. John C. BROOKS.
• Court: North Carolina Court of Appeals

Page 556

275 S.E.2d 556

51 N.C.App. 183

BONE INTERNATIONAL, INC. v. John C. BROOKS.

No. 807DC593.

Court of Appeals of North Carolina.

March 17, 1981.

Fields, Cooper & Henderson by Milton P. Fields, Rocky Mount, for plaintiff-appellant.

Henson, Fuerst & Willey by Thomas W. King, Rocky Mount, for defendant-appellee.

CLARK, Judge.

Plaintiff's sole assignment of error is to the granting of summary judgment for the lack of a genuine issue of material fact. In its brief, plaintiff cites authority for a number of general propositions concerning the circumstances under which the granting of summary judgment would be proper. Thus, the following propositions, among others, are urged upon this Court:

1. Upon a motion for summary judgment the court must not attempt to resolve issues of fact but determine whether there is a genuine issue of material fact to be tried. Lambert v. Duke Power Co., 32 N.C.App. 169, 231 S.E.2d 31, cert. denied, 292 N.C. 265, 233 S.E.2d 392 (1977).

2. A motion for directed verdict may be granted only if the evidence is insufficient, as a matter of law, to support a verdict for the plaintiff. Husketh v. Convenient Systems, Inc., 295 N.C. 459, 245 S.E.2d 507 (1978).

3. To determine the sufficiency of the evidence to go to the jury, all the evidence supporting the plaintiff's claim must be taken as true and considered in the light most favorable to the plaintiff, giving him the benefit of every reasonable inference which may be legitimately drawn therefrom, with contrasts, contradictions, conflicts, and inconsistencies resolved in the plaintiff's favor. Oliver v. Royall, 36 N.C.App. 239, 243 S.E.2d 436 (1978).

4. Judgment as a matter of law is never proper when the facts are in dispute. Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297 (1971); Jones v. Development Co., 16 N.C.App. 80, 191 S.E.2d 435, cert. denied, 282 N.C. 304, 192 S.E.2d 194 (1972).

We recognize these propositions as the law in this State, and we will endeavor to apply these principles to the facts presented by plaintiff to determine if they were sufficient to create a genuine issue of material fact.

Plaintiff cites only two opinions to establish the existence of a genuine issue of material fact, Howell v. Smith, 258 N.C. 150, 128 S.E.2d 144 (1962) (Bobbitt, J.), and Howell v. Smith, 261 N.C. 256, 134 S.E.2d 381 (1964) (Sharp, J.). Both opinions deal with the same case. The first reversed the judgment of involuntary nonsuit, concluding that plaintiff had presented a genuine issue of triable fact. The second affirmed a jury verdict in favor of plaintiff. Since both Howell opinions deal with the liability of agents for undisclosed principals, we presume that plaintiff considered the defendant in this case to be an agent for an undisclosed principal. Plaintiff is of course wise in seeking to characterize defendant as an agent for an undisclosed principal. Were defendant acting for a disclosed principal, plaintiff would have no case. " 'An agent who contracts on behalf of a disclosed principal and within the scope of his authority ... is not personally liable to the other contracting party.' " Walston v. Whitley & Co., 226 N.C. 537, 540, 39 S.E.2d 375, 377 (1946); see also Way v. Ramsey, 192 N.C. 549, 135 S.E. 454 (1926).

Defendant presented with his affidavits uncontradicted documentary evidence in the form of invoices from plaintiff, which had been marked paid. These invoices, dated 1976 and 1977, showed that, on at least three occasions during those two years, defendant authorized work to be done on the trucks which had by this time been transferred to corporate ownership. The same invoices billed "John C. Brooks, Inc." for the repair work they described. We hold that these invoices establish, as a matter of law, knowledge on the part of the agent of the plaintiff who filled out the invoice that defendant's trucking business was being carried on as a corporation and that defendant had authority to act for the corporation. The knowledge of plaintiff's agent must be imputed to plaintiff. Bruce v. Casualty Co., 127 F.Supp. 124 (E.D.N.C.), aff'd 222 F.2d 642 (4th Cir. 1955); Wilkins v. Welch, 179 N.C. 266, 102 S.E. 316 (1920).

Even if we assume, as plaintiff seems to suggest, that the original agreement was reached between plaintiff and defendant prior to the incorporation of the business, taking defendant "outside the usual rule that an officer of a corporation will not be individually bound when contracting within the scope of his employment as an agent of the corporation," Howell v. Smith, 261 N.C. at 260, 134 S.E.2d at 384, we believe plaintiff is still barred as a matter of law from recovery. Justice Sharp's opinion in the Howell case speaks directly to such a circumstance:

"If a third party to a contract involving an undisclosed principal discovers the agency and the identity of the principal while a continuing, divisible contract for the furnishing of goods or supplies is still executory, he then has the option to deal either with the agent or the principal with respect to the future performance of the contract. Ordinarily, the agent who made the original purchase is not liable if the third party continues to deliver goods after acquiring knowledge of the principal's identity unless he has agreed to be personally liable."

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