Gooding v. Moore

• Decision Date: 04 March 1909
• Citation: 63 S.E. 895,150 N.C. 195
• Parties: GOODING v. MOORE et al.
• Court: North Carolina Supreme Court

63 S.E. 895

150 N.C. 195

GOODING v. MOORE et al.

Supreme Court of North Carolina

March 4, 1909

Appeal from Superior Court, Craven County; O. H. Allen, Judge.

Action by one Gooding against John P. Moore and another, doing business as the Southward Lumber Company. Judgment for plaintiff for less than the relief demanded, and he appeals. Reversed.

Where an oral contract between plaintiff and defendant's general agent was within the agent's apparent authority it was not material that the agent violated defendant's instructions in making the contract by parol, in the absence of proof that plaintiff knew of the limitation on his authority.

The plaintiff declared on three causes of action: First cause of action plaintiff alleged: That defendants had entered into a valid and binding contract for plaintiff to cut, log, and deliver at defendants' mill the standing timber growing on a certain tract of land, known as the "Nixon tract," amounting to about 2,000,000 feet, and at a contract price of $3.50 per 1,000 feet, with certain incidental stipulations with regard to advancements, time of payment, etc.; that plaintiff had entered upon the performance of the contract, had delivered 1,040,000 feet for which plaintiff had been paid, had cut and delivered about 350,000 feet on which there was a balance due from defendants of about $600; and that defendant had then wrongfully broken the contract, refusing to allow plaintiff to continue and complete the same, to plaintiff's damage about $4,000. Second cause of action was for injuries caused by reason of defendants' negligence in failing to supply proper and adequate equipment, according to the stipulations of the contract. Third cause of action was on a quantum meruit for the use of defendants' stock, etc., in work not included or covered by the contract. Defendants entered a general denial to the plaintiff's second and third causes of action, and on issues submitted there was verdict for defendant, and to the first cause of action denied that it had ever entered into any contract to cut the entire body of timber on the Nixon tract, as claimed by plaintiff, but averred that the timber cut and delivered by plaintiff was under a special contract, restricted to the service rendered and for which plaintiff had been paid in full. On the first cause of action the court held, in effect, that there was no evidence tending to show a valid contract between plaintiff and defendant for cutting the entire timber on the Nixon tract, as claimed by plaintiff, and withdrew the issue addressed to that question from the jury, and plaintiff excepted. The court then submitted an issue as to the balance due for the service rendered in cutting and delivering the timber received by defendant, to wit, the 350,000 feet, and the jury found such balance due and unpaid to be $169.30. Plaintiff moved for a new trial for error in the ruling of the court as to the first issue. Motion denied, and plaintiff excepted. Judgment on the verdict for the $169.30, and plaintiff excepted and appealed.

D. L. Ward, for appellant.

Simmons, Ward & Allen, for appellees.

HOKE J.

We find no error to plaintiff's prejudice in the disposition of the second and third causes of action, and the judgment...