70 N.C. App. 614 | N.C. Ct. App. | 1984
Lead Opinion
We reverse the judgment of the District Court. The plaintiff has alleged facts which if offered in evidence would allow a jury to find the defendants promised the plaintiff that if the plaintiff would make certain payments for a third party, the defendants would retain from the proceeds of a claim they were handling for the third party funds with which they would reimburse the plaintiff. The plaintiff accepted this offer by making the payments and the defendants have refused to reimburse the plaintiff from the proceeds of the settlement for the third party. If a jury should find these facts, the defendant would be liable to the plaintiff for breach of contract.
The defendants, relying on Smith v. State, 289 N.C. 303, 222 S.E. 2d 412 (1976), argue that Mr. Trimpi was the agent of Mr. Simpson and that an agent acting within the scope of his authority is not liable for a contract made for his principal. We do not disagree with this statement of the law. If, as in this case, however, the agent agrees with the promisee that he will be bound by the contract he is so bound and is liable for the contract’s breach.
Reversed and remanded.
Dissenting Opinion
dissenting.
I respectfully dissent from the majority opinion. I believe that under the holding of Smith v. State, 289 N.C. 303, 222 S.E. 2d 412 (1976), the plaintiffs cause of action lies against the principal, Mr. Simpson, and not the agent, Mr. Trimpi. When a contract is made with a known agent, acting within the scope of his authority for a disclosed principal, the contract is that of the principal alone. See also, Jenkins v. City of Henderson, 214 N.C. 244, 247, 199 S.E. 37, 39 (1938). The letter from Mr. Trimpi to the plaintiff discloses that Mr. Trimpi was acting as an agent for his principal, Mr. Simpson, seeking to use the principal’s funds to fulfill the obligations of the contract.
