Western Carolina Realty Co. v. Rumbough, 90 S.E. 931

Western Carolina Realty Co. v. Rumbough

90 S.E. 931

N.C.

1916

Check Treatment

Walker, J.,

after stating the case: We are of the opinion that there was evidence to show that Mr. Eumbough, in his negotiations with the plaintiff realty company for leasing the property of Mrs. Eumbough, was acting as her agent, and this evidence did not consist in declarations and acts of the agent, which would be incompetent. Francis v. Edwards, 77 N. C., 271; Daniel v. R. R., 136 N. C., 517; Jackson v. Tel. Co., 139 N. C., 347; McCormick v. Williams, 152 N. C., 638. There is proof, apart from what Mr. Eumbough did or said, whiсh tends to show that he was acting for and in .behalf of his wife throughout the transaction, and with her knowledge and consent, and with authority so to act'derived from her beforehand. She did not make the lease herself — that is, personally — and all the evidence goes to prove that the transaction was conducted by her husband until the lease was carried ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to her and she signed it, saying at the time that she thought it was a fair lease to both parties, and the lease contained a clause to the effect that the rents were to be paid at the office of plaintiff. The first proposal was that the lease should run for fifteen years at $2,700 per annum, but this was not satisfactory to Mrs. Eumbough, and Mr. Eumbough insisted that it.be changed to ten years, with a *748 rеnewal clause for five years, at $2,800 rent for each, year, payable monthly, and stated that then Mrs. Rumbough would sign the lease. The change was made, and when the lease was'taken to her she did sign it willingly, and expressed the opinion of it which we have above stated. The terms of the lease informed her, or was notice to her, that plaintiffs had acted for her in procuring it, as it was brought to her by Mr. Sumner and Mr. Wearn, acting for the plaintiff. She ratified what had been done, if she did not in the beginning authorize her husband to act for her, though the evidence tends strongly to show that she had given full authority to her husband to lease the property for her and that he was acting under that authority. There is evidence also from which the jury could well infer that she rеceived the first installment of rent, from which the commission of 5 per cent had been deducted, and made no complaint on that account. “Except in the cases wherein thе common law requires authority under seal, or some statute requires authority in writing, no particular method of author--izing is necessary; and, except in those cases, no particulаr method of proving the authority need be resorted to. Any competent witness having knowledge of the facts may be called, or any lawful mode of proof be adopted. The evidence offered need not be of the same nature as the act of authorization except in the cases referred to in the preceding sections. Thus the authоrity may have been conferred by express word of mouth and be proved by evidence of recognition; it may have been conferred informally but proved by evidence of an express admission. The existence of agency is a fact, and, like other facts, may be proved by any evidence traceable to the alleged principal and having a legal tendency to establish it. Informal writings- of the alleged principal, his letters, telegrams, -book entries, and the like are clearly admissible. But it need not be proved by written instruments (except in the cases already mentioned) or by express or formal oral language; The agency may be shown by conduct, by the relations and situation of the parties, by aсts and declarations, by matters of omission as well as of commission, and, generally, by any fact or circumstance with which the alleged principal can be connected and having a legitimate tendency to establish that the person in question was his agent for the performance of the act in controversy.” 1 Meehem on Agency, secs. 260 and 261, pp. 185 and 186. “Agéncy, like any other controvertible fact, may be proved by circumstances. It may be inferred from previous employment in similar acts or transactions, or from acts of such nature and so continuous as to furnish a reasonable basis of inference that they were known to the principal, and that • he would not have allowed the agent so to act unless authorized. In such cases the acts or transactions are admissible to prove agency. *749 But in order to be relevant tbe alleged principal must in some way directly or indireсtly be connected witb tbe circumstances. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Tbe agent must bave assumed to represent tbe principal, and to bave performed tbe acts in bis name and on bis bebalf.” Hill v. Helton, 80 Ala., 528. Mr. Meebem further says tbat for tbe purpose of proving agency a wide range may often be properly given to tbe testimony, provided tbat which is offered has a real probative tendency toward tbe main question in issue, or, in other words, legitimately tends to prove tbe fact of agency so tbat tbe jury may reasonably deduce from it tbat such agency existed. 2 Meebem, sec. 261, p. 187.

We bave not stated all tbe facts or circumstances which tend to show tbat Mr. Rumbougb was acting as agent of bis wife witb her knowledge and consent, as it is only necessary to decide there was some evidence which justified tbe submission ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of tbat question to tbe jury. If Mr. Rumbougb was tbe agent of bis wife to lease tbe property, what be did in furtherance of tbe business and within tbe scope of bis employment is binding upon her. Tbe rule is thus stated in Latham v. Field, 163 N. C., 356, 360: “A principal is bound by tbe acts of bis agent within tbe authority be has actually given him, which includes not only tbe precise act which bе expressly authorizes him to do, but also whatever belongs to tbe doing of it, or is necessary to its performance. Beyond tbat, he is liable for tbe acts of tbe agent within tbe apрearance of authority which tbe principal himself knowingly permits tbe agent to assume, or which be bolds tbe agent out to tbe public as possessing.” See, also, Daniel v. R. R., supra; 2 Meebem on Agency (2 Ed.), sec. 1709.

The defendant contends that B. H. Sumner, who took part in securing tbe lease, did not bave tbe license to do such business required by Public Laws 1913, cb. 201, sec. 32, and tbat for this reason tbe plaintiffs cannot recover. But Sumner was not acting for himself in tbe transaction, nor was be a partner in.tbe plaintiff firm. He was merely an employee working for tbe realty company, and received bis comрensation from tbe company and not from tbe Rumboughs by way of commissions due to him by them on tbe rents for any ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍services be rendered. He was not dealing with them in bis own bebalf, but simply as the reprеsentative of another. The transaction was altogether between tbe realty company and the Rumboughs, though in conducting it to a conclusion tbe company was assisted by Sumner as their employee, and at tbe time it was consummated by tbe signing of tbe lease one of tbe firm was present. Under such facts and circumstances it has been held tbat tbe agent is not subject to tbe tax, but is protected by tbe license of bis principal. Myderdock v. Com., 26 Grattan (Va.), 988. But this statute provides tbat tbe principal or *750 the agent shall pay the tax for the privilege ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of doing- the particular business.

We do not think that Sumner, so far as the evidence in this record shows, was subject to the provisions of Public Laws 1913, ch. 201, sec. 32, as he was neither collecting rent nor aсting as agent in buying or selling real estate, even if he could be considered as a principal, oí-as an agent where the principal had no license for the transaction. It was a misjoinder to make him a party as plaintiff, and the court very properly dismissed him from the action. He had no cause of action, either jointly or severally, against the Rumboughs, and could look only to the realty company for his pay. He was not interested in the lease, or the commissions, so as to have any claim against the lessees. The cоntract was between the plaintiff realty company and Mrs. Rumbough, who owned the property, which was the subject of the lease, and the cause of action for the commissiоns or for any compensation for securing the lease and collecting the rent belonged solely to the realty company. In the present aspect of the case this is not an action by a person without a license, or.one who has not paid the required tax, to recover commissions on a real estate transaction, as Sumner is not nоw a plaintiff, but it is an action, as at present constituted, by plaintiffs, who have the tax-paid privilege, under the law, to do the'thing for which they-are seeking to recover commissions, as compensation for the service so rendered.

In the view we take of the case it becomes unnecessary to consider the question whether the fact that Sumner had no license, or had not paid the tax, would so far vitiate the transaction as to- preclude a recovery of anything.

We have considered the objections to testimony and find no error in the rulings of the court with respect to them. There was evidence of Rumbough’s agency for his wife, and his acts within the scope of his authority are binding upon her.

The court submitted the proper issues. They embraced all controverted questions.

We find no error in the record.

No error.