Martin & Garrett v. Mask

• Decision Date: 27 March 1912
• Citation: 74 S.E. 343,158 N.C. 436
• Parties: MARTIN & GARRETT v. MASK.
• Court: North Carolina Supreme Court

74 S.E. 343

158 N.C. 436

MARTIN & GARRETT v. MASK.

Supreme Court of North Carolina

March 27, 1912

Appeal from Superior Court, Wayne County; Peebles, Judge.

Action by Martin & Garrett, agents, against George M. Mask. From a judgment for defendant in the justice court, plaintiffs appeal to the superior court, and from a judgment for plaintiffs, defendant appeals. Reversed and remanded.

This action was commenced by Martin & Garrett, agents, before a justice of the peace to recover the sum of $166.65 and interest on $166.65 from December 14, 1910, due by five notes for $33.33 each, given for rent of house No. 307, Third street, Augusta, Ga.; said notes being due March 1, 1911 April 1, 1911, May 1, 1911, June 1, 1911, and July 1, 1911. The form of the notes was as follows: "$33.33. Augusta Ga., Dec. 14, 1910. After date the undersigned promises to pay to the order of Martin & Garrett, agents, thirty-three and 33-100 dollars at any bank in the city of Augusta, Ga. For value received in rent, with interest from maturity at the rate of eight per cent. per annum, with all costs of collection, including ten per cent. attorney's fees. And each of us, whether maker or endorser, hereby severally waives and renounces for himself and family, any and all homestead or exemption rights he may have under or by virtue of the Constitution or laws of the state of Georgia or of any state or of the United States, as against this note or any renewal thereof. Geo. M. Mask. [L. S.] Rent of house No. 307 3rd St." On the left end of the said note were the following words and figures: "Martin & Garrett, Real Estate and Renting Agents. 137 8th St., Ground Floor, Dyer Building." The defendant denied any liability to the plaintiffs. Judgment was rendered by the justice in favor of the defendant, and the plaintiff appealed. In the superior court, the defendant moved to dismiss the action, on the ground that it appeared upon the face of the summons, and also from the notes, that the plaintiffs were agents, and that the action should have been brought in the name of their principal, the real party in interest. The motion was denied, and the defendant excepted.

The defendant offered to prove that he was, at the time of making said contract, the agent of the Metropolitan Life Insurance Company, and he did not know how long he would reside in the city of Augusta, his residence there being entirely dependent upon his employment by the company at that point; and, in consequence thereof, there was a separate and distinct contract made with the plaintiffs at the time of the signing of the said notes, by which it was agreed and understood that the defendant would pay said notes which were given for the house in which he was to reside and did reside during his stay in Augusta, but that if he was required to leave the city of Augusta that he was to pay no other note, and that he would surrender the possession of the house to the plaintiffs; that, in accordance with the contract, the defendant did pay to the plaintiffs the rent on said house during his stay in Augusta; that, under instructions from his employer, he left Augusta during the month of January, 1911, and paid the plaintiff the note that was due February 1, 1911, for the rent of said house for the month of January, 1911, and delivered the possession of said house and lot to the plaintiffs, and that the plaintiffs took possession of and rented said house out to other parties; that, by reason of said contract, the said notes sued on, all being given for the rent of the house for months subsequent to February 1, 1911, were not to be paid, and the defendant was under no obligation on said notes to the plaintiffs or their principal. This evidence was excluded, and the defendant excepted. There was judgment in favor of the plaintiffs, and defendant excepted and appealed.

Geo. E. Hood, for appellant.

Wentworth W. Pierce, for appellees.

ALLEN J.

The record presents two questions: (1) Was it error to refuse to dismiss the action, because the plaintiffs are named as agents, and sue on notes payable to them as agents? (2) Was it error to exclude the evidence offered by the defendant?

1. The first question must be solved by adopting a correct interpretation of section 400 of the Revisal, providing that "every action must be prosecuted in the name of the real party in interest, except as otherwise provided," and Rev. § 404: "An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another."

It is clear that the plaintiffs, being agents, are not the real parties in interest under section 400, and, in order to maintain their action, it must appear that they are trustees of an express trust, under section 404, and within that term are included those in whose name a contract is made for the benefit of another.

The clearest and most comprehensive discussion of the language used in this section we have been able to find is in Pomeroy's Code Remedies, § 99 et seq., from which we quote at length:

"The only difficulties of interpretation presented by this section are the determining with exactness what persons are embraced within the three classes, described as 'trustees of an express trust,' 'persons with whom or in whose name a contract is made for the benefit of another,' and 'persons expressly authorized by statute to sue.' It is plain that there are substantially three classes. The second and better form of the provision actually separates them, and does not represent one as a subdivision of the other. The first form in terms speaks of 'the person with whom or in whose name a contract is made for the benefit of another' as an instance or individual of the wider and more inclusive group, 'trustees of an express trust.' It should be carefully noted, however, that these two expressions are not stated to be synonymous; the former is not given as a definition of the latter. The section does not read, 'a trustee of an express trust shall be construed to mean a person with whom or in whose name a contract is made for the benefit of another,' but simply that the latter shall be regarded as one species of the genus. There is here no limitation, but rather an extension, of the meaning, and the clause, of course, recognizes other kinds of trustees besides the party to the special form of contract, who is not very happily termed a 'trustee."'

"We must find the true legal definition of 'trustees of an express trust,' and add to this the 'persons with whom or in whose name contracts are made for the benefit of others'; the combined result will be the entire class intended by the Legislature. *** An express trust assumes an intention of the parties to create that relation or position, and a direct act of the parties by which it is created in accordance with such intention, outside of the mere operation of the law. *** It primarily assumes three parties: The one who, by proper language, creates, grants, confers, or declares the trust; the second, who is the recipient of the authority thus conferred; and the third, for whose benefit the authority is received and held. It is true that in many instances the first-named parties are actually but one person--that is, the same individual declares, confers, receives, and holds the authority for the benefit of another--but the theory of the transaction is preserved unaltered; for the single person who creates and holds the authority acts in a double capacity, and thus takes the place of two

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