Rot v. Jacobosky

• Decision Date: 15 November 1904
• Citation: 136 N.C. 443,48 S.E. 796
• Court: North Carolina Supreme Court
• Parties: LE ROT v. JACOBOSKY et al.

48 S.E. 796

136 N.C. 443

LE ROT

v.JACOBOSKY et al.

Supreme Court of North Carolina.

Nov. 15, 1904.

principal and agent—contracts of agent— excess of authority—personal liability —actions for damages—measure of damages — guardian and ward — powers of guardian—sales of real estate—contracts—impossibility of performance— — probate—ratification — attachment — moneys subject.

1. A guardian, a tenant in common with his wards, entering into a contract to convey the property, signing his name first as an individual, and following his individual signature with a signature describing himself as guardian of his wards, naming them, held not personally liable on the contract in respect to the shares of his wards, for whom the other party to the contract knew that he was acting.

2. Where an agent, or one acting in a representative capacity, fails to bind his principal, whereby another is misled, and parts with something of value or acquires legal rights, the agent, although not liable on the contract as made, may be held liable in, a special action on the case under the common-law procedure, or, under the Code, in an action upon an implied assumpsit, when he received the consideration, or for damages.

3. In an action against an agent who entered into a contract in excess of his authority or without authority the measure of damages is what plaintiff lost by reason of tbe false assertion of agency, or the amount of money paid out, or the value of services rendered, or such special damages as plaintiff may have sustained by reason of the agent's wrong.

4. Where an action against an agent proceeds in its pleadings and evidence on the theory that the agent, not having bound his principal, is personally liable on the contract, there can be no recovery on the theory of damages for a false assertion of authority.

5. A contract by a guardian to sell his wards' real estate without any authority from the court to enter into such contract is contrary to public policy, and void.

¶ 5. See Guardian and Ward, vol. 25, Cent Dig. §§ 174. 175.

6. An unauthorized contract of a guardian to sell his wards' property, being void, will not be enforced, nor will damages be given for the — breach thereof.

7. Money proceeds of the sale of land which belonged to wards are subject to attachment in the hands of the clerk after the confirmation of the sale.

S. Under Code, § 1246, subd. 9, providing that whenever an instrument requiring registration shall not have a witness, and the maker shall be a nonresident, or dead, proof of his handwriting shall be sufficient to admit the same to registration, where all the makers of an instrument are alive, and all except one are nonresidents, such one may make the requisite proof of the handwriting of the others.

9. In an action for the breach of a contract to sell land, where defendants had sold the land at public auction and received the proceeds, they were liable for the difference between the contract price and the amount received by them.

10. One who signed on April 28th a contract to convey land on April 23d of the same year is not bound because of the impossibility of performance of such contract

11. Where a guardian had contracted to convey his wards' land on or before April 23d, a signature to the contract by the ward on April 28th could not operate as a ratification of the guardian's agreement

Appeal from Superior Court, Pasquotank County; Hoke, Judge.

Action by J. H. Le Roy against H. Ja-cobosky, S. H. Welsei, and others. From the judgment rendered, plaintTtf aud defendants Jacobosky and Weisel separately appeal. Affirmed on plaintiff's appeal. Affirmed on defendant Jacobosky's appeal. Reversed on defendant Weisel's appeal.

Plaintiff's Appeal.

The defendants H. Jacobosky, A. Jacobosky, and S. H. Weisel were on March 13, 1903, the owners, as tenants in common with Rebecca Weisel and Sadie Weisel; the last three being infants, and the said H. Jacobosky being their general guardian, residing in the state of Virginia. On the said 13th day of March, 1903, the said H. and A. Jacobosky, under tbe firm name and style of Jacobosky Bros., and the said H. Jacobosky, as guardian of the said wards, entered into a written agreement with the plaintiff, as follows: "Portsmouth, Va., March 13, 1903. In consideration of Twenty-five Dollars paid to us, we hereby agree to sell to J. H. Le Roy, the property and wharf on Water St. in Elizabeth City, N. C. known as the 'Weisel property' for the sum of $22,500. Leaving a balance due us of $22,475. This option holds good from this, date until April 13, 1903. Said property cannot be delivered to purchaser until present leases expire which are known to Mr. Le Roy. [Signed] Jacobosky Bros. H. Jacobosky, Gd'n. of Simon, Fannie and Sadie Weisel. J. H. Le Roy. S. H. Weisel." The said S. H. Weisel reached bis majority prior to April 23, 1903, on which day he signed the agreement. After the execution of the agreement, the parties, tenants in common, the adults in their own behalf and the infants appearing by their next friend, filed their petition in the superior court of Pasquotank county, asking for an order for a sale of the property. After proper proceedings had in the premises, the land was brought to public sale by the commissioner duly appointed, and bought by B. F. White and J. B. Flora at the price of $25,000. The sale was confirmed and title made to the purchasers. The defendants having refused to convey to the plaintiff, who duly tendered the amount of the contract price within the time named, he brought this action for the purpose of recovering damages for the breach of the contract The court submitted the following issues to the jury: "(1) Are the defendants H. and A. Jacobosky indebted to the plaintiff on breach of contract and, if so, in what sum? (2) Is the defendant H. S. Weisel indebted to the plaintiff, and, if so, In what amount?" The plaintiff introducedthe contract. He testified that he was present at the time the contract was signed, and that he knew nothing of the ages of the infants, except that it was signed as guardian for them; that he gave a check for $25, and as he went out of the front door of the defendants' store after the check was given the defendant H. Jacobosky said that the Weisels were minors, and it would be necessary to obtain an order of court to make title, and that he would get the order. He also said, if any one raised the price, he would buy it in and make the title. The plaintiff testified that he tendered the money. The defendants H. and A. Jacobosky said that they admitted that the witness had offered to comply with this contract, but that S. H. Weisel had since become of age, and refused to carry it out. Certain letters were put in evidence tending to show a demand of the plaintiff and refusal of the defendants to comply with the contract. The court charged the jury that, if they believed the evidence, they should answer the first issue, "Yes; twelve twenty-sevenths of $25,000 and $25" (that being the interest of the defendants H. and A. Jacobosky). The plaintiff excepted, claiming the entire damage, or difference in the contract price and the amount for which the property sold. Prom a judgment on the verdict the plaintiff appealed.

E. P. Aydlett, for plaintiff.

Ward & Thompson, for defendants.

CONNOR, J. (after stating the facts). The only question presented upon the plaintiff's appeal is whether the defendant H. Jacobosky is personally liable on the contract in respect to the interests or shares of his wards, Sadie and Rebecca Weisel. It will be well to bear in mind the fact that the action is on the contract and for breach thereof; that the issues are directed to the inquiry of the indebtedness arising from a breach of the contract. The brief of the plaintiff's counsel maintains and cites authorities to show that the defendant guardian is personally liable in the same manner and to the same extent as he is on the contract in respect to his own share or interest in the land. He concedes that there can be no decree for specific performance as against the infants. The defendant concedes that he had no authority, as guardian, to enter into any contract to sell the real estate of his wards. He says that this was well known to the plaintiff, and that by his signature as guardian the plaintiff knew that he was contracting only in his representative capacity, and not personally. The plaintiff says that, conceding this to be true, the law, without regard to the intention of the parties, fixes the defendant with a personal liability; that some one was to be bound, and, if the infants were not bound by the contract, the guardian must be so personally, or there was no contract. It has been said by quite a number of judges that when, by reason of the absence of authority, the principal is not bound upon the contract, the agent must be. Ellsworth, J., in Ogden v. Raymond, 22 Conn. 379, 58 Am. Dec. 429, says: "We are aware that it is not unfrequently laid down as a rule of law that, if the agent does not bind his principal, he binds himself; but this rule needs qualification, and cannot be said to be universally true or correct." Mr. Mechem says: "The rule sometimes asserted that, wherever the agent fails to create a right of action against his principal upon the contract, he makes himself liable thereon, cannot be sustained as a general rule." Mechem on Agency, § 550. Referring to the cases holding this doctrine, Selden, J., says: "The authority of these cases has been somewhat shaken, and in England as well as in several of the United States the principle upon which they rested, if they are supposed to present the only ground of liability of the agent, has been substantially repudiated. If it were necessary, in disposing of the present case, to decide the question whether, as a general principle, one entering into a contract in the name of another without authority is to be himself holden as a party to the contract, I should hesitate to afhrm...