Trollinger v. Fleer

• Citation: 72 S.E. 795, 157 N.C. 81
• Case Date: November 15, 1911
• Court: United States State Supreme Court of North Carolina

72 S.E. 795
157 N.C. 81

TROLLINGER
v.
FLEER.

Supreme Court of North Carolina.

Nov. 15, 1911.

1. Master and Servant (§ 6^*)—Contract or Employment—Action for Breach—Sufficiency of Evidence.

Evidence in an action for breach of contract by which defendant agreed to employ plaintiff and his sons on defendant's farm held to show such a contract as claimed by plaintiff.

[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 6.*]

2. Master and Servant (§ 40*)—Wrongful Discharge—Actions—Burden of Proof.

The burden was upon defendant in an action against him for breach of a contract to employ plaintiff to show that plaintiff was rightfully discharged after his employment.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 47; Dec. Dig. § 40.*]

3. Master and Servant (§ 73*)—Discharge —Wages.

Where plaintiff was employed by defendant, he could not recover wages stipulated by the contract, if he was rightfully discharged by defendant.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 99; Dec. Dig. § 73.*]

4. Trial (§ 256*)—Instructions—Requests.

If the instructions were not as explicit as defendant desired, he should have requested special instructions to make them so.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 628-641; Dec. Dig. § 256.*]

5. Contracts (§ 16*)—Assent of Parties-Necessity.

Parties to a contract must assent to the same thing in the same sense.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 72; Dec. Dig. § 16.*]

6. Principal and Agent (§ 92*)—Contracts —Assent by Agent.

The party to a contract may assent thereto by an agent.

[Ed. Note.—For other cases, see Principal and Agent, Dec. Dig. § 92.*]

7. Principal and Agent (§§ 8, 14*)—Existence of Relation.

An agency may be conferred by express authority given by the principal or by the principal's conduct in holding the agent out as such.

[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 16, 27 1/2; Dec. Dig. §§ 8, 14.*J

8. Principal and Agent (§ 25*)—Establishment—Relation—Agency by Estoppel.

One who by word or conduct represents that another is his agent is estopped to deny such agency as against a third person dealing with the purported agent on the strength of such representations.

[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 42; Dec. Dig. § 25.*]

9. Principal and Agent (§ 20*)—Existence of Relation—Evidence.

In an action for breach of a contract employing plaintiff as a farm manager claimed to have been made by defendint's brother as agent, the fact that defendant put his brother in general charge of his business with apparent right to make contracts of employment was admissible upon the question of his agency to make the contract with plaintiff.

[Ed. Note.—For other cases, see Principal and Agent, Dec. Dig. § 20.*]

10. Principal and Agent (§ 170*)—Acts of Agent—Ratification.

A principal by assenting to the acts of one who acts as his agent without authority is bound by way of ratification.

[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 638-643; Dec. Dig. § 170.*]

11. Principal and Agent (§ 23*)—Agency-Evidence.

Evidence in an action for breach of a contract employing plaintiff as a farm manager, claimed to have been made by defendant's brother as his agent, held to sustain a finding that the brother was authorized to make the contract.

[Ed. Note.—For other cases, see Principal and Agent, Dec. Dig. § 23.*]

12. Principal and Agent (§ 173*)—Ratification—Sufficiency of Evidence.

Evidence held to sustain a finding that defendant ratified the act of his brother in employing plaintiff to act as farm manager.

[Ed. Note.—For other cases, see Principal and Agent, Dec. Dig. § 173.*]

13. Appeal and Error (§ 1002*)—Findings— Conclusiveness.

It is for the jury in the trial court to decide questions upon conflicting evidence.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.*]

Appeal from Superior Court, Davidson County; Lyon, Judge.

Action by R. H. Trollinger against F. H. Fleer. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought by the plaintiff for loss of wages for himself and his two sons for 12 months, alleging that he made a contract to work for the defendant on his farm near Thomasville for one year from July 1, 1909, at the price of $1,200 and $1 per day for each of plaintiff's sons, said payments to be made monthly, and also for expenses of moving his furniture to the defendant's farm, and for loss incurred in giving up his position, which he claimed he filled, with some other parties. The defendant denied that he had ever hired either the plaintiff or his sons, and alleged that the proposal to hire them was altogether tentative, and was dependent upon his interview with the plaintiff at the defendant's farm, as appears in the last clause in defendant's letter to plaintiff, dated June 22, 1909, in which he says: "I will look for an immedi_-

[72 S.E. 796]

ate reply, after receiving which, I will make it convenient to meet you at an early date." The defendant further alleges that the plaintiff had made certain representations as to his qualifications to do the work required with machinery, which he ascertained were not true, as he could not operate the machinery with which the defendant expected to farm. The defendant further denied that he had made any contract for the hire of the boys, but the court treated the hiring of the plaintiff and the two sons as an entire contract. The plaintiff and his sons were discharged by the defendant and, they allege, without just cause or excuse. The defendant contended at the trial that there was no sufficient contract of hiring between the plaintiff and himself, and that his brother, M. L. Fleer, who actually hired the plaintiff and his boys upon the terms mentioned, had no authority from him to do so. This requires a summary of the testimony. On June 7, 1909, plaintiff mailed to the defendant, from Seneca, S. C, a letter, in which he proposed to hire himself as manager, and his boys as laborers, to the defendant, who owned and cultivated a farm in Davidson county, making a formal application for the positions. Defendant answered, June 16, 1909, as follows: "I believe you would be the man for the job, and if you will tell me what pay you expect I am willing to take the matter into consideration. Figure upon straight wages by the month, or year, as I do not care to share crops. Your reply should be sent to my Phila. office to reach me promptly. Use the enclosed envelope." To this letter plaintiff replied, proposing to hire himself, as manager, at $1,200 a year, and each of his boys at the wages of "a common day laborer." Defendant...