Leggett Elec. Co. v. Morrison

• Citation: 139 S.E. 455,194 N.C. 316
• Decision Date: 05 October 1927
• Docket Number: 56.
• Parties: LEGGETT ELECTRIC CO. v. MORRISON.
• Court: United States State Supreme Court of North Carolina

139 S.E. 455

194 N.C. 316

LEGGETT ELECTRIC CO. v. MORRISON.

No. 56.

Supreme Court of North Carolina

October 5, 1927

Appeal from Superior Court, Edgecombe County; Nunn, Judge.

Action by the Legett Electric Company against E. H. Morrison. Judgment for defendant, and plaintiff appeals. Affirmed.

Evidence held insufficient to establish actionable deceit based on defendant's misrepresentations that wife had agreed to allow plaintiff right of way over land.

George M. Fountain, of Tarboro, for appellant.

Gilliam & Bond and H. H. Philips, all of Tarboro, for appellee.

ADAMS J.

The plaintiff, a corporation authorized by the laws of North Carolina to transmit electric power, entered into negotiations with the defendant and his wife for the purpose of acquiring a right of way over land which was owned by Mrs Morrison. After repeated conferences between the parties the plaintiff failed to procure the grant, but, as alleged in the complaint, the defendant subsequently told the plaintiff's agent that he and his wife had "agreed to extend the right of way upon the condition that same be not had on the road but back from the road," and pointed out the place where the poles should be erected. It was alleged that on other occasions before any work had been done on the land the defendant held himself out as the agent of his wife and said that it would not be necessary for the agent to see her because she had approved and assented to "the extension of the right of way;" and, further that the plaintiff, relying upon these representations erected its poles on the land and was afterwards compelled by Mrs. Morrison to remove them, in consequence of which it had suffered financial loss.

The action was laid in deceit and was prosecuted on the theory that the defendant was not his wife's agent. The plaintiff evidently knew that Mrs. Morrison owned the land and was affected with constructive notice that any parol license which the defendant gave the plaintiff to enter thereon was revocable at the will of the owner and that any purported or intended grant of an easement or other conveyance of a permanent or continuing right in the land must have been evidenced by a written instrument duly executed and proved or acknowledged. McCracken v McCracken, 88 N.C. 273; Kivett v. McKeithen, 90 N.C. 106; Railroad v. Railroad, 104 N.C. 658, 10 S.E. 659; Herndon v. Durham & S. R. Co., 161 N.C 650, 77 S.E. 683; Davis v. Robinson, ...