Taylor v. Albemarle Steam Nav Igation Co

Citation105 N.C. 484,10 S.E. 897
CourtNorth Carolina Supreme Court
Decision Date17 February 1890
PartiesTaylor et al. v. Albemarle Steam Nav igation Co.

Corporations — Contracts — Ratification — Actions—Evidence—Instructions—Registration —Appeal.

1. Under Code N. C § 1264, providing for the registration of conveyances of an "interest in or concerning land, " a paper writing granting to defendant a right to land all freights on plaintiffs' wharf for 10 years, and conferring an exclusive right to receive any freights on said wharf which defendant may be willing to transport, is an instrument proper to be recorded, and the registry of the same is admissible in evidence.

2. It is competent for plaintiffs to testify that the person with whom they made the contract sued on was acting as superintendent of the defendant company, though he signed as treasurer only.

3. In an action for breach of a contract to give defendant the right to land all freight on plaintiffs' wharf, and the exclusive right to receive any freight which defendant may be willing to carry, it is incompetent to prove that plaintiffs leased another wharf to an opposition line.

4. An exception to the refusal of the court toadmit a letter which does not appear in the record, will be overruled.

5. In an action for breach of a contract made by the treasurer of defendant for wharf privileges, where the superintendent of defendant testifies that it "had used the plaintiffs' wharf since the date of the agreement, and acted under it, " a charge that it is a sufficient ratification of the contract if defendant "accepted it, acted under it, and performed its terms, * * * with full knowledge of its import, " is fully sustained.

6. Where defendant agrees to land all its boats touching at a town at plaintiffs' wharf, in consideration of the exclusive privileges granted, and plaintiffs are to receive wharfage on all freight landed and received for shipment, the erection by defendant of another wharf near the town, for the purpose of drawing freights from plaintiffs' wharf, is a violation of the contract.

7. An assignment of error that" defendant excepted to the charge, as given upon the first and second issues, " is too general.

Appeal from superior court, Hertford county; George H. Brown, Jr., Judge.

This was an action brought by the appellees, W. P Taylor and Jordan & Parker, against the appellant, the Albemarle Steam Navigation Company, for damages by breach of contract for wharf privileges.

The plaintiffs, complaining in this cause, say: "(1) That the defendant company, through its treasurer, John T. Hill on the 13th of April, 1875, contracted with Wm. P. Taylor and A. J. Northcott, as set out in the paper writing hereto attached, marked 'Exhibit A, ' and made part of this complaint. (2) That the said company afterwards fully ratified and confirmed the contract above named. (3) That, by subsequent assignments and conveyances, the interest of A.J. Northcott in the wharf property described in said Exhibit A, and in the said contract, became the property of these plaintiffs. (4) That during the year 1884 the defendant, in violation of its said contract, caused a new wharf to be erected about three hundred yards below the wharf described in Exhibit A, and on the same side of the Chowan river, and by printed circulars posted in Hertford, and especially in the neighborhood of Win-ton, and by other means, offered special inducements to persons who would ship from and receive freight at the said new wharf; and on the 1st day of November, 1884, in further violation of the said contract, said company caused their steamers to stop at the said new wharf, and to discharge and receive freight from the same. "

The following issues were submitted to the jury, to-wit: "(1) Did the defendant contract as alleged in complaint? Answer. Yes. (2) Did defendant comply with such contract? A. No. (3) Did the plain-tiffs perform said contract on their part? A. Yes. Admitted. (4) What damages, if any, have plaintiffs sustained? A. $606.25, in ter-est included." Thereupon the court gave judgment for plaintiffs, and the defendant appealed.

The plaintiffs offered in evidence paper writing Book E, p. 269, register's office. Defendant objected that the instrument is not one proper to be recorded. Overruled. Exception by defendant. A copy thereof is hereto annexed, marked " Exhibit A. " Plaintiffs offered to prove by witness that J. T. Hill acted as superintendent and treasurer of defendant. Objection overruled, and exception by defendant. Defendant offered to prove that plaintiffs built and leased the Keystone wharf to an opposition line, engaged in the same kind of traffic, after the date of the contract sued on. Objection sustained. Exception by defendant. The defendant offered the following testimony: Mr. Bogart testified that he is superintendent of defendant company. "Commenced to land freights at Anderson's wharf, November 15, 1884. I directed agents to deliver all merchandise billed and marked ' Winton' to plaintiffs' wharf; and all marked 'Anderson's Wharf, ' to Anderson's. Anderson's wharf belonged to defendant and one Anderson. I put up circulars in Winton, notifying them about the opening of Anderson's wharf, outside of the corporate limits of Winton, inviting them to have their goods sent there. In the fall of 1884, plaintiffs told me I would have to pay more at the expiration of our lease, because we would not discontinue the wharf several miles outside of Winton. We had used plaintiffs' wharf since the date of the agreement, and acted under it, and stopped our boats there. My purpose in establishing the Anderson wharf was to draw freight from the Northcott wharf to our new wharf, and for. our future benefit." Defendant offered a letter dated September 30, 1878, signed, " W. P. Taylor, " being the letter referred to by Maj. Bogart. Objection sustained. Exception by defendant.

The court charged the jury, in substance, as follows: "Upon first issue, this contract, so far as the evidence discloses, was not executed by the defendant at date thereof; there being no evidence that Hill, as treasurer, was authorized to sign and execute it. Its validity depends upon its ratification and acceptance by defendant. If the defendant accepted it, acted under it, and performed its terms up to November 1, 1884, with full knowledge of its import, then it is a ratification, and the jury should answer the first issue, 'Yes.' As to second issue, this contract requires defendant to cause all its boats on the Chowan to land and receive all freights for the town of Winton at plaintiffs' wharf, in order that plaintiffs might get the benefit of the agreement, and receive wharfage. There is nothing in the contract which prohibits the defendant from landing its vessels at a wharf outside the town of Winton, and nothing which would prevent defendant from landing or receiving such freights as were tendered at such wharf by the voluntary act of the shipper; and if defend ant, fairly and in good faith, did no more than this, that would not be a violation of its agreement, and you should answer the second issue, 'Yes.' But if defendant, while undertaking to perform its agreement with plaintiffs, as by stopping its vessels at plaintiffs' wharf, had the Anderson wharf built, and solicited and procured the merchants and shippers of Winton to deliver freights there instead of, as before, at plaintiffs' wharf, and if its purpose in establishing the Anderson wharf was solely to draw freight from plaintiffs' wharf, as tes tified to by Superintendent Bogart, and thus by defendant's efforts such freights and business were withdrawn from plaintiffs' wharf before' the expiration of theagreement, by the instigation of the defendant's agents, it would be a violation of the agreement, and the defendant would not have performed its contract, and you should answer the second issue, 'No.'"

There was a verdict for plaintiffs upon the issues, as appears by the responses of the jury thereto.

The defendant assigned errors...

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