Brittain v. Westhall

• Decision Date: 24 May 1904
• Citation: 47 S.E. 616,135 N.C. 492
• Parties: BRITTAIN v. WESTHALL.
• Court: North Carolina Supreme Court

47 S.E. 616

135 N.C. 492

BRITTAIN v. WESTHALL.

Supreme Court of North Carolina

May 24, 1904

Appeal from Superior Court, Catawba County; Neal, Judge.

Action by D. M. Brittain against W. H. Westhall. From a judgment for defendant, plaintiff appeals. Reversed.

If an agent is authorized to buy for cash to be furnished by the principal, and he violates his instructions and buys on credit, and the principal thereafter receives the goods so bought by his agent and appropriates them to his own use, he is liable for the price, unless he can show that he furnished his agent with the necessary funds to buy the lumber, and the latter nevertheless bought on a credit, and that the principal received the goods without any notice of that fact and will be prejudiced if he is made to pay for them.

L. L Witherspoon and M. H. Yount, for appellant.

Self & Whitener, for appellee.

WALKER J.

The plaintiff brought this action before a justice of the peace to recover the sum of $182, the balance claimed to be due for lumber sold and delivered to the defendant through one J. A Townsend, who, the plaintiff alleged, was the agent of defendant to buy the lumber, but this allegation was denied by the defendant, and he also denied that he is indebted to the plaintiff in any amount. The justice gave judgment for the plaintiff, and the defendant appealed, and the superior court, after hearing the evidence, nonsuited the plaintiff on motion of the defendant, and the latter excepted and appealed.

The case turns upon the question whether the said Townsend, at the time the lumber was purchased, was the agent of the defendant and authorized to buy for him as he did. In order to establish the affirmative of this issue joined between the parties, the plaintiff introduced in evidence an agreement between Townsend and Westhall, dated January 13, 1903, by which the former agreed to ship to the latter all the lumber to be manufactured from timber taken from, and to be taken from, the land described in a certain deed of trust made by Townsend to A. S. Abernathy, as well as from all other land the timber on which the said Westhall had already contracted or thereafter contracted to buy, and all other lumber which Townsend should buy from any and all other persons. It was further agreed that Westhall should credit Townsend on the debt secured by the deed of trust with the money due for lumber manufactured from timber cut on the land described in the deed of trust, at certain prices specified in the contract, and that Townsend should receive credit at the same prices for the lumber bought by him and shipped to the defendant, with certain deductions. The contract contains this clause: "Said party of the second part is to furnish to the party of the first part, at his discretion such sums of money as may be necessary for him, the said party of the first part, to pay for such lumber as he may buy from such other person or persons, but the said party of the first part shall buy such lumber only at such prices as shall be agreed upon between him and the party of the second part and said purchases of lumber so made by the party of the first part shall always be in the name of and for the party of the second part, in whom the title shall always be and remain. It is understood and agreed between the parties that the party of the second part is not to pay for or become chargeable with the cost of logging or manufacturing into lumber the timber taken from said land mentioned and described in said deed of trust, or for the timber bought by or to be bought by the party of the second part, nor is he to pay for or become chargeable with the cost of hauling the timber from said land to the place of manufacturing the same into lumber, or for hauling said lumber from the place of manufacture to the place of shipment." The plaintiff, examined in his own behalf, testified that he sold the lumber in 1903 to Townsend, who said that he was buying it for Westhall; that he sold it on Westhall's credit, and Townsend said that Westhall was to furnish the money. The plaintiff hauled the lumber to the railroad station and turned it over to Townsend, who paid for it with checks drawn by him on the bank, payable to the plaintiff's order. On the face of each check was this indorsement in the plaintiff's handwriting: "This check for lumber bought for W. H. Westhall." The defendant objected to the introduction of the checks; the objection was overruled, and the defendant excepted. The other testimony was not objected to. The plaintiff further testified that he had been paid $250 on the contract and sale of the lumber, and that there is still due him a balance of $182 by the defendant. The latter told the plaintiff that he had possession of a part of the lumber, and the plaintiff saw about 10,000 feet of the lumber in the possession of the defendant after he took charge of Townsend's property. The lumber was worth $10.50 per thousand feet. ...