Simmons v. MortonSimmons v. Morton
Although plaintiffs make thirteen assignments of error, their crucial assignment is that the trial court committed error in allowing defendants’ motion for judgment as in case of nonsuit. We hold that the trial court рroperly allowed defendants’ motion.
Defendants contend that plaintiffs failed to show agency between Mrs. Lucy B. Johnson and the defendants, particularly the feme defendants; they also contend that plaintiffs’ attempt to impose a negative easement by oral agreеment is in violation of the statute of frauds and is not enforceable.
Plaintiffs attempted to аllege two causes of action which are substantially the same, in that they allege an оral agreement or promise by the secretary of the defendant Hugh Morton to plaсe a negative easement on property owned by the feme defendants, and seek.to enjoin all defendants from erecting an apartment house or shopping center on the sixty acres of land in question.
Plaintiffs failed to carry the burden of proof on the issue of agеncy. They failed to show that defendant Hugh Morton was the agent of the feme defendants; consequently, the acts of an employee of defendant Hugh Morton could not be imputed to the feme defendants.
“The plaintiff has the burden of proving that a particular person was at the time acting as a servant or agent of the defendant. An agent’s authority to bind his principal cannot be shown by thе agent’s acts or declarations. This can be shown only by proof that the principal authorized the acts to be done or that, after they were done, he ratified them.” Lee, N. C. Law of Agency and Partnership, § 20. One who seeks to enforce against an alleged princiрal a contract made by an alleged agent has the burden of proving the existence of the agency and the authority of the agent to bind the principal by such contract.
Supply Co. v. Hight,
“One who deals with an agent must, to protect himself, ascertain the extent-of-the ■ agent’s authority.” Rodman, J., speaking for our Supreme Court in
Nationwide Homes v. Trust Co.,
“The burden of establishing the relation of principal and agent between defendant and said real estate agent is upon plaintiff. The relаtion can arise only from a contract between the parties, express or impliеd. * * * The law will not imply such a contract unless the same is clearly established by the facts.” O’Donnell v. Carr, supra.
Defendants’ motion for judgment as of nonsuit was proper also for that the alleged represеntations or restrictions were in violation of the statute of frauds.
Many of the legal questions invоlved here were thoroughly discussed by Varser, J., speaking for our Supreme Court in
Davis v. Robinson,
The pertinent portion of our statute of frauds, G.S. 22-2, provides as follows: “All contracts to sell or convey any lands, tenements or hereditaments, or any interest in or concerning them, * * * shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thеreto lawfully authorized.” (Emphasis ours).
Plaintiffs’ contentions regarding the representations and рromises of Mrs. Johnson would tend to establish a negative easement, which, under the decisions of our Supreme Court, clearly comes within the statute of frauds.
In
Weant v. McCanless,
The evidence in the case at bar showed that the alleged contrаct was in parol; therefore, the Superior Court properly declared it invalid.
In view of the foregoing, we do not deem it necessary to consider the other assignments of error made by plaintiffs.
The judgment of the Superior Court is
Affirmed.