No. 7526DC423 | N.C. Ct. App. | Nov 19, 1975
On appeal defendant does not make any contention or argument-with respect to any portion of the judgment except that portion allowing a recovery of $2,807.04 upon the Lands End Road account. The defendant’s position is that the court should have allowed its “motion for nonsuit” made “at the close of plaintiff’s evidence and renewed at the close of all the evidence.” Although plaintiff’s motion did not state any grounds and referred to no rule, the court noted that the motion was made under Rule 41(b) and denied it. In support of its position, defendant contends that the evidence conclusively shows that it was not a party to the contract, the contract being between plaintiff and Barry McKenna; that defendant was acting as agent for McKenna; and that plaintiff knew of the agency relationship. It is true that defendant’s witness, Cockinos, testified that he was acting as an advisor to McKenna and that he was to receive ten per cent of the cost of construction. He also testified that he did have conversations with plaintiff with respect to the pump station and septic tank installation and . that he took Staley to the lot. He further testified that, he did not try to -find anyone to do the work cheaper and that he did not tell McKenna what the cost would be. With respect to what he told Staley as to his relationship to McKenna, he testified: “The conversation was that he would do this work at Barry
Staley testified that Cockinos told him that he (Cockinos) was the general contractor.
There is no evidence that plaintiff had knowledge of the agency relationship contended for by defendant.
An agent who makes a contract for an undisclosed principal is personally liable as a party to it unless the other party had actual knowledge of the agency and of the principal’s identity . . . The disclosure of the agency is not complete so as to relieve the agent of personal liability unless it embraces the name of the principal. The duty is on the agent to make this disclosure and not upon the third person with whom he is dealing to discover it ... It will not relieve the agent from personal liability that the person with whom he dealt had means of discovering that the agent was acting as such . . . When the principal becomes known, the other party to the contract may elect whether he will resort to him or to the agent with whom he dealt unless the contract is under seal, a negotiable instrument, or expressly excludes him.” Howell v. Smith, 261 N.C. 256" court="N.C." date_filed="1964-01-31" href="https://app.midpage.ai/document/howell-v-smith-1231906?utm_source=webapp" opinion_id="1231906">261 N.C. 256, 258-259, 134 S.E.2d 381" court="N.C." date_filed="1964-01-31" href="https://app.midpage.ai/document/howell-v-smith-1231906?utm_source=webapp" opinion_id="1231906">134 S.E. 2d 381 (1964).
The court correctly denied defendant’s motion.
Defendant next contends that the court erred in failing to include in its findings of fact and conclusions of law anything with regard to the agency relationship. The evidence was such that findings and conclusions with respect to the agency question would have been proper in the judgment. However, since the evidence clearly showed that plaintiff was without knowledge of the relationship claimed by defendant, no prejudice has resulted from the court’s failure to include findings and conclusions on that question.
Affirmed.