Opinion
(June Term, 1851.)
An agent who in making a contract discloses the name of the principal is not legally responsible to the person with whom he contracts, and therefore if he pays any damages arising from a breach, he cannot recover the amount so paid from the principal unless paid by his special request.
APPEAL from Caldwell, J., at JONES Spring Term, 1851. Assumpsit, to recover the price of a flat. The declaration contains three counts. First, in a special contract to indemnify; second, for money paid to the use of the defendant; third, for work and labor done.
The facts, as they appeared on the trial, are as follows: Some time in the winter of 1846 the defendant employed the plaintiff to (19) have a flat built for him at New Bern by the first of May of that year; that the plaintiff, in pursuance thereof, made a contract with Roberson Howell, ship carpenters, to build the same, by the time mentioned, large enough to carry 250 barrels, at and for the price of $225, telling the said Roberson Howell at the time that it was for the defendant and that he resided in Wayne. And the said Roberson Howell testified that they built it accordingly and of the proper size, and had it ready to launch by 15 April, 1846, and on the last day of the said month launched it, where it still remains. They also testified that they did not know the defendant Smith; that they did not execute the job upon the faith of being paid by him; that when the work was done, they charged it to the plaintiff, on whom they relied, and upon their application he paid them in the spring of 1848. And they further stated that they did not tell the plaintiff in express terms that they would look to him for the payment when the said contract was made. On their cross-examination they stated that they allowed the plaintiff to bring a suit in their names against the defendant for the price of the flat in question; that it pended for some time and terminated in a nonsuit before this suit was brought; and that the plaintiff, on being urged to do so, paid for the flat before the nonsuit aforesaid. It also appeared by the testimony of a witness that he had called on the defendant, in Wayne, before suit in the names of said Roberson Howell, and demanded payment of him, as well in behalf of said parties as in behalf of the plaintiff; that he refused to make payment, alleging that the flat was not finished within the time agreed upon. It did not appear that any other demand had been made upon the defendant.
It was insisted for the defendant that the plaintiff could not recover, for that there was no evidence of a special contract, for (20) that the plaintiff made the contract as an agent, declaring at the time the name and residence of the defendant; for that, as the payment made by the plaintiff was voluntary and without demand on his part, he could not thereby make the defendant liable.
The court charged the jury that if they believed the flat was finished and ready for delivery on 1 May, 1846, and the other evidence on the trial, the plaintiff was entitled to recover the value of the flat, with interest on the money from the time it was paid by the plaintiff. Rule for a venire de novo, because of misdirection. Rule discharged. Judgment rendered on the verdict. Appeal.
W. H. Washington for plaintiff.
J. W. Bryan for defendant.
We can see nothing to distinguish this case from the ordinary one of an agent who engages work to be done for and in the name of his principal, whose name and residence he discloses. The agent is under no legal obligation to pay for the work, and if he does pay for it he will not be able to make good the necessary allegation that he "paid money for the use of his principal and at his instance and request."
In this case the defendant had, on demand made by the builders of the flat, expressly refused to pay. Whether his refusal was upon sufficient cause is not material; he had expressly refused to pay, and a suit was pending against him at the time the plaintiff alleges he paid the money for him; but the idea that he paid it at his instance and request is out of the question, in the absence of any prior legal obligation to do so, and the defendant had cause to complain that thereby the matter which he saw proper to contest with the builders of the flat was, without his (21) consent, put an end to by the officious interference of the plaintiff, who now seeks to make him pay for the flat without any inquiry as to the merits of the defense upon which he was relying in the action brought by the builders.
This disposes of the count "for money paid." Upon the other two counts there was no evidence; at all events, the case does not seem to have been made out in reference to them.
PER CURIAM. Venire de novo.
Cited: Davis v. Burnett, 49 N.C. 71; Osborne v. McCoy, 107 N.C. 731; Robinson v. Sampson, 121 N.C. 101; Rounsaville v. Ins. Co., 138 N.C. 194; Hicks v. Kenan, 139 N.C. 344.