Oliver v. U.S. Fidelity & Guaranty Co.

• Decision Date: 27 November 1918
• Docket Number: 289.
• Citation: 97 S.E. 490,176 N.C. 598
• Parties: OLIVER ET AL. v. UNITED STATES FIDELITY & GUARANTY CO.
• Court: North Carolina Supreme Court

97 S.E. 490

176 N.C. 598

OLIVER ET AL. v. UNITED STATES FIDELITY & GUARANTY CO.

No. 289.

Supreme Court of North Carolina

November 27, 1918

Appeal from Superior Court, Cumberland County; Connor, Judge.

Suit by the State, on the relation of Mattie L. Anderson Oliver and another, against the United States Fidelity & Guaranty Company and another. Judgment for the plaintiffs, and the named defendant appeals. No error.

Evidence held sufficient to sustain a finding that an agent had authority to bind his principal by a promise not to plead the statute of limitations.

This is an action to recover the amount due the plaintiff as the ward of John C. Gorham against the defendant, the surety on the guardian bond.

The facts necessary to an understanding of the questions presented are stated in the report of a former appeal ( Anderson-Oliver v. United States Fidelity Co., 174 N.C. 417, 93 S.E. 948), except that at the second trial the plaintiffs, in reply to the plea of the statute of limitations, contended that they were induced to delay the commencement of this action by the request of the general agent of the defendant not to sue and by the promise not to plead the statute of limitations. There was evidence tending to prove this contention of the plaintiffs, but not that any request or promise was in writing.

At the conclusion of the evidence the defendant moved to nonsuit the plaintiffs upon the ground that there was no writing tending to prove the request or promise, and upon the admitted facts the plaintiffs' cause of action was barred.

Motion was denied, and the defendant excepted. There are other exceptions which will be referred to in the opinion.

There was a verdict and judgment for the plaintiffs, and the defendant appealed.

E. G Davis and J. C. McRae, both of Fayetteville, for appellant.

Sinclair & Dye, of Fayetteville, for appellees.

ALLEN J.

When this action was tried the first time in the superior court it was held that the defendant was not protected by lapse of time under the plea of the statute of limitations, because it was a foreign corporation, and had not appointed a process agent in the state, following Voliver v. Cedar Works, 152 N.C. 656, 68 S.E. 200, 21 Ann. Cas. 623; but this ruling was reversed on appeal and a new trial ordered upon the ground that, while no regular process agent had been appointed, the defendant had at all times after the cause of action accrued a general agent in the county of Cumberland upon whom the summons might have been served, and but for this fact the judgment in favor of the plaintiffs would have been affirmed. See Anderson-Oliver v. United States Fidelity Co., 174 N.C. 417, 93 S.E. 948.

At the second trial the plaintiffs replied to the plea of the statute of limitations that the commencement of the action had been delayed at the request of the same general agent and because they were led to believe by his conduct and promises that the amount due would be paid as soon as the claim of Mrs. Chedister was settled, and that the lapse of time would not be relied on, and the defendant met this position of the plaintiffs by the contention that the agent was one of limited powers, that he was not a general agent, and could not bind the defendant except in the execution of certain bonds, and that defendant was not therefore bound by his request not to sue or by the promise not to plead the statute of limitations, and further that no request or promise of the agent could avail the plaintiffs because not in writing.

The important questions, therefore, presented by this appeal are exceptions to evidence tending to show the authority of the agent, the extent of the powers of the agent, and whether the request not to sue and the promise not to plead the statute of limitations must be in writing, and these will be considered in their order.

The plaintiff offered in evidence a paper writing in which the agent agreed with the defendant, among other things, "to assist in the investigation and settlement of claims made upon bonds, policies, or the company's other insurance."

This paper was objected to because it was not signed by the defendant, but it was properly admitted, because it was in evidence that the paper was prepared by the defendant in duplicate and sent to the agent for his signature, that he signed both copies and returned them to the defendant, and that the defendant then sent one copy to the agent, retaining the other.

When the defendant prepared the paper and required the agent to agree with the defendant to do certain things, and retained it in order that it might enforce its terms, it became a party to the agreement as much so as if its signature had been attached.

While this agreement was in force the widow of the guardian, John C. Gorham, then Mrs. Chedister, filed a claim against the estate of the guardian, seeking to have a debt due her of about $6,000 declared a charge on the residence lot.

The defendant was interested in this litigation because, if the claimant succeeded, the assets from the estate of the guardian applicable to the claim of the plaintiffs in this action would be reduced, and the liability of the defendant herein correspondingly increased.

The agent notified the defendant of the pendency of the litigation, and it employed an attorney to represent it with the agent, who was also an attorney, which they did, although the defendant was not then a party to the record.

The claim of Mrs. Chedister...