Appeal by defendants John M. Twisdale and Twisdale Mfg. Co., Inc. from Herring, Judge. Judgment entered 3 March 1978 in Superior Court, Brunswick County. Heard in the Court of Appeals 27 June 1979.
Morris, Chief Judge. Judges Clark and Erwin concur.
Defendants first contend that the trial court erred in allowing witnesses for the plaintiff to testify about conversations with
U. J. LeBlanc, an agent of defendants. The witnesses testified that negotiations leading to the contract were conducted between them and LeBlanc and that LeBlanc was present on the job site as defendants' agent. The witnesses testified generally that LeBlanc directed the project and authorized frequent changes from the written contract. For example, the superintendent for plaintiff testified: "Additional equipment other than that which was contemplated was used on this project. Mr. LeBlanc authorized this equipment. It was necessary for extra work that had to be done over and above the contract." Defendants contend that this and similar testimony violates G.S. 8-51 since LeBlanc was dead at the time of the trial. We disagree.
The challenged testimony was not admitted in violation of G.S. 8-51. That statute prohibits testimony from witnesses in certain circumstances "against the executor, administrator or survivor of a deceased person. . . ." A witness is not regarded as testifying "against" the representative unless such representative is a party to the litigation. 1 Stansbury, N.C. Evidence (Brandis Rev. 1973), § 71, p. 217. Here, the challenged testimony was obviously not against the representative of the deceased person. Moreover, our Supreme Court has held that G.S. 8-51 does not render an interested witness incompetent to testify to a transaction between himself and a deceased agent of his opponent. Bailey v. Westmoreland, 251 N.C. 843, 112 S.E.2d 517 (1960).
Defendants also contend that the testimony of the witnesses about conversations with LeBlanc should have been excluded on the basis of this statement of our Supreme Court in Commercial Solvents v. Johnson, 235 N.C. 237, 241, 69 S.E.2d 716, 719 (1952):
"While proof of agency, as well as its nature and extent, may be made by the direct testimony of the alleged agent . . . nevertheless it is well established that, as against the principal, evidence of declarations or statements of an alleged agent made out of Court is not admissible to prove the fact of agency or its nature and extent. . . ."
However, the stated rule is subject to several exceptions, one of which is clearly applicable to the facts disclosed by this record:
And in applying this rule, ordinarily the extrajudicial statement or declaration of the alleged agent may not be
given in evidence, unless (1) the fact of agency appears from other evidence, and also unless it be made to appear by other evidence that the making of such statement or declaration was (2) within the authority of the agent or, (3) as to persons dealing with the agent, within the apparent authority of the agent. Commercial Solvents v. Johnson, supra, 235 N.C. 237 at 241, 69 S.E.2d 716 at 719.
Here, in his pleadings and testimony, the individual defendant admitted LeBlanc's agency. Moreover, LeBlanc's apparent authority was indicated ...