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Simmons v. Cherry

Filed: November 6, 1979.

MERCER W. SIMMONS
v.
W.P. CHERRY AND W.P. CHERRY AND SONS, INC.



Appeal by defendant from Hamrick, Judge. Judgment entered 10 October 1978 in District Court, Lincoln County. Heard in the Court of Appeals 12 September 1979.

Wells, Judge. Judges Arnold and Webb concur.

Wells

We find that the evidence was sufficient for the trial court to have found that the defendant Cherry, in addition to the corporation, was a party to the contract with plaintiff. The plaintiff testified:

In the fall of 1974 W. P. Cherry contacted me by phone and made an appointment and then came to my office in Lincolnton.

I had not known Mr. Cherry prior to that time. I do not recall a statement as to his connection with W. P. Cherry and Sons, Incorporated. Mr. Cherry requested that I make a feasibility study and an appraisal of a proposed residential subdivision in Morganton for him. We agreed on a fee of $2,500.00. I don't recall that there was a specific discussion as to who would pay it, as to him or W. P. Cherry and Sons, Incorporated. To my best recollection, the only time that I was aware of W. P. Cherry and Sons, Incorporated, I think, was as he was leaving the office, he gave me his card which had his corporate name on there. There was the general statement to the effect that the fee would be paid when I completed the report.

There were numerous telephone calls in reference to the statement with Mr. Cherry over a period of approximately twelve months, and he assured me that there would be no problem . . . of the statement being paid. He guaranteed that it would be paid, and he would see that it would be paid, [or] words of this nature.

While Cherry testified to the contrary, from the above quoted statements of plaintiff the trial court could reasonably conclude plaintiff had originally contracted with Cherry personally as well as the corporation. We note that this is not a case involving an undisclosed principal. See, Staley, Inc. v. Realty Co., 27 N.C. App. 541, 219 S.E.2d 654 (1975). We take the trial court's findings as holding that plaintiff contracted with two principals -- Cherry and the corporation -- and not that Cherry was merely acting as guarantor of the corporation's debt.

Our Supreme Court has held that, "[w]hether the principal is disclosed at the time of the . . . contract or afterwards discovered, the plaintiff cannot hold both principal and agent in one suit, where, as here, the complaint recognizes and alleges agency and nothing further in support of the theory of personal or individual liability " [emphasis added]. Walston v. Whitley & Co., 226 N.C. 537, 541, 39 S.E.2d 375, 377 (1946). Furthermore, ". . . a contract made by a known agent, acting within the scope of his authority for a disclosed principal, nothing else appearing, is the contract of the principal alone [citation omitted], although the agent of a disclosed principal may by special agreement bind himself to performance of the contract " [emphasis added]. Way v. Ramsey, 192 N.C. 549, 551, 135 S.E. 454, 455 (1926). See also, Restatement (Second) Of Agency ยงยง 320-322 (1958).

The question in the present case is whether, by his statements and conduct, Cherry made an agreement with the plaintiff binding himself to performance of the contract and personal liability therefor. Plaintiff testified that Cherry requested that plaintiff, "make a feasibility study and an appraisal of a proposed residential subdivision in Morganton for him [Cherry]." [Emphasis added.]

The trial court could reasonably conclude from the evidence that the parties contemplated, at the time the contract was made,

that both defendants would be responsible for the ...


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