Supreme Court of North Carolina, 1875

Boyett v. . Braswell

Supreme Court of North Carolina · Decided January 5, 1875 · Reads

72 N.C. 260

Counsel

John L. Bridgers, Jr. , for appellant. The defendant excepts: 1. That the Court erred in submitting the question, whether Brantly was Braswell's agent, there being no evidence of such agency. Wittkowsky Rintels v. Wasson , 71 N.C. 451 ; State v. Vinson , 63 N.C. 335 ; Cobb v. Fogleman , 1 Ire., 440; State v. Revels , Busb. 200; Sutton v. Moore , 2 Jones, 320; Smith v. Fort , 71 N.C. 54 ; Bond v. Hale , 8 Jones, 15; 3 Hawks, 5. 2. In admitting the declarations of Brantly as testified to by Boyett, there being no evidence tending to establish an agency between Braswell and Brantly. Williams v. Williams , 283, 284, 6 Ire. 3. In that the Court charged, that if Brantly was Braswell's agent, he, Brantly, as receiving agent, had the right to arrange about the manner of the delivery; and if he agreed to give Boyett notice, and Braswell made a new contract with Vanhook before Boyett was put in default by notice, plaintiff was entitled to recover. Dula v. Cowles , 4 Jones, 521; Jones v. Eason , 2 Ire., 337. Perry , contra, insisted: The only exception of defendant is, that there was no evidence of Brantly's authority to bind the defendant by his agreement to notify plaintiff of Vanhook's default. If there was any evidence of such authority, it was proper for the jury to consider it. Blackledge v. Clarke , 2 Ire., 394; Wells v. Clement , 3 Jones, 168; State v. Allen , 3 Jones, 257. 2. The testimony of both plaintiff and defendant furnishes evidence, which his Honor properly left to the jury, of such authority. a. Plaintiff says that Braswell "promised to pay according to Brantly's contract." b. According to the testimony of both, the defendant failed to make any stipulation as to the delivery of the lumber. c. Defendant testified he was to have nothing to do with furnishing the lumber. All this was proper to be considered by the jury, and justified the inference that all the details of the arrangement were to be under the control of Brantly. d. According to the original agreement between plaintiff and Brantly, the former was by implication entitled to be notified by Brantly of any dissatisfaction the latter might have on account of his want of promptness in the delivery of the lumber. So that the subsequent agreement in regard to Vanhook's remissness did not vary the contract, which the defendant had expressly ratified. e. The fact that Braswell retained the title to the mill, and was to receive pay for it in lumber, was proper to be considered by the jury as evidence, in connection with other circumstances.

Opinion of the Court

Reads, J.

The plaintiff cannot recover for an alleged breach of contract on the part of the defendant, without showing that he, the plaintiff, had complied with his part of the contract; or without showing that he had been relieved from complying by the conduct of the defendant. Here, then, is no pretense that the plaintiff had complied, and the only ques *264 tion is, whether he had been relieved from, complying by the conduct of the defendant.

The plaintiff sajrs that one Brantly, to whom the defendant had sold his saw mill, and who was to pay defendant for it in lumber, promised the plaintiff that if "Vanhook, who was the plaintiff's agent to deliver timber in compliance with plaintiff’s contract with the defendant, should be “ remiss” in delivering the timber he, Brantly, would notify the plaintiff of it, so that the plaintiff might himself deliver it:, and that Brantly never gave him any such notice.

It is clear that nothing which Brantly said or did can affect the defendant, unless he was the defendant’s agent, to say or do that thing. And here there is no evidence that Brantly ivas authorized to say or do anything to relieve the plaintiff’ from his undertaking to deliver 200,000 feet of timber or saw logs, ac the mill. The plaintiff says, that the fact that Brantly was in possession of the saw mill and was to receive and saw the logs, is some evidence from which the jury might infer that Brantly was the agent of the defendant. Grant that to be so, yet, for what purpose was be the defendant’s agent? Agent to receive the timber.

And then, bis Honor charged the jury, that if Brantly was the defendant’s agent to receive the timber, then he was bis agent to make the promise to notify the plaintiff of the remissness of Yanderhook, the plaintiff’s agent; and that a breach of that promise by Brantly relieved the plaintiff from his contract with the defendant to deliver the timber, and authorized the plaintiff to recover of the defendant, just as if he had delivered it.

The proposition cannot be maintained, that an agency to receive is evidence of an agency to dispense with the delivery, lienee, there is no direct evidence of any agency at all ; and the plaintiff only insists that the fact that Brantly was in possession of the mill when the logs were to be delivered, is some evidence of liis agency to receive. Grant that to beso. Then if the plaintiff had shown that lie had carried the logs and *265 offered to deliver thorn, and the agent would not receive them, he might with force, have insisted that he had complied with his contract to deliver.

The plaintiff seeks to give merits to his case by the consideration that if he had had notice of the default of his agent, Yanhook, he would have complied with the contract by delivering the logs himself. But he fails upon the merits; for although JBrantly did not notify him, yet Yanhook did ; and that was better. The plaintiff failed to furnish Yanhook with food for his oxen, as he had agreed to do, and therefore Yan-hook could not haul the logs, and notified the plaintiff that he 4' was out of it.”

Our conclusion is that his Honor ought to have charged the jury that there was no evidence that the plaintiff had complied with his part of the contract, or been relieved from complying, and thereforo the plaintiff' was not entitled to recover.

There is error.

Peb Cckiam. Venire de novo.

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