M. P. Hubbard Co. v. Brown, 186 N.C. 96 (1923)

Sept. 19, 1923 · Supreme Court of North Carolina

186 N.C. 96

M. P. HUBBARD COMPANY, INC., v. C. S. BROWN, NORMAN HALL, and J. R. WEAVER.

(Filed 19 September, 1923.)

1. Bills and Notes — Guarantor of Payment — Evidence—Seller and Purchaser — Endorser.

Where the defendants deny individual liability as purchasers of plaintiff's fertilizer, but contend they were acting merely as agents for the sale, to others, and refuse to endorse their customer’s notes, which the plaintiff insists they had contracted to do, evidence that one of them had agreed to endorse them for a consideration is competent as tending to show he had agreed to become a guarantor of payment. "

2. Principal and Agent — Evidence—Seller and Purchaser.

Defendants having apparently signed a contract for the purchase of fertilizer individually, denied in the seller’s action individual liability, and contended they were acting only as agents in the sale to others: Bold, competent for the plaintiff to show that a defendant gave orders as to whom the fertilizers were to be shipped, and introduce a contract of the previous year, executed in like manner, showing individual liability, and introduce evidence that plaintiff had sold the fertilizer upon the defendants’ individual responsibility, after investigating them.

S. Bills and Notes — Endorser—Renewal—Extension of Time — Releasing Endorser.

Upon the issue of whether the payee of a note had released the defendants from an agreement to become endorsers, by renewals and extension of time of payment without their knowledge: Held, competent for plaintiff to show defendants’ knowledge and consent, and what one of them had said to its agent in respect thereto; also, admissions of liability made to the agent two years after the execution of the contract of sale.

4. Appeal and Error — Questions and Answers.

Where tile record shows exceptions to unanswered questions, without more, the exceptions will not be considered on appeal.

5. Appeal and Error — Instructions—Bequests for Instruction.

The refusal to give a requested instruction is not error, when correctly stated by the judge in his general charge, or when it is more favorable to appellant than he had requested.

6. Instructions — Bequests for Instructions — Evidence—Assumption of Fact.

A request for instruction that assumes as a fact an issuable question is properly denied.

Appeal by defendant from Allen, J., at February Term, 1923, of Hertford.

On 6 January, 1920, tbe plaintiff and defendants entered into a written contract for tbe sale of a certain quantity of fertilizer to be shipped from tbe plaintiff’s factory in Baltimore to tbe defendants, in Hertford County, North Carolina.

The contract provides, in part, that all goods delivered under said contract would be due 1 July, 1920, and tbe defendants were to make full settlement on or before 1 July, either in cash or by note. If paid in cash, tbe defendants were entitled to a 5 per cent discount if settlement was made on time. Notes were to be given by tbe purchasers to whom tbe fertilizer was sold, said notes to be endorsed by tbe defendants and made payable to some bank not later than 1 July, 1920, and if any of said notes were unpaid ninety days after maturity, tbe said defendants were to pay them.

Tbe defendants ordered under said contract about $28,000 worth of fertilizer; tbe defendants sold said fertilizer to various farmers and took their notes, which notes were worthless to tbe plaintiff unless endorsed by tbe defendants as agreed upon in their contract. Tbe plaintiff knew none of tbe purchasers of tbe fertilizer, but relied solely upon tbe defendants for payment of all goods shipped on their order.

Most of tbe purchasers of tbe fertilizer thus bought were insolvent, and tbe credit extended them was in reliance upon tbe endorsement, of tbe defendants, tbe plaintiff looking to tbe defendants alone for tbe purchase price of tbe fertilizer.

After taking tbe aforesaid notes from tbe purchasers of tbe fertilizer, which purchasers tbe defendants bad selected, tbe latter sent these notes to tbe plaintiff in Baltimore without endorsement; tbe plaintiff refused to accept said notes until properly endorsed. Tbe defendants, in sending these notes to tbe plaintiff, endorsed only some of them. Tbe plaintiff knew none of tbe parties to tbe transaction, except tbe defendants, and no fertilizer, according to the testimony,.would have been sold by the plaintiff unless Norman Hall, one of these defendants, had signed the contract.

There was testimony on the trial that the defendants took security from several of the purchasers, and after their failure to pay the defendants, the .defendants sold the land of such purchasers and bought it in, in their own name, but refused to jiay the plaintiff the price of the fertilizer.

The plaintiff also produced testimony in the trial that Norman Hall, one of the defendants, declined to sign the contract and thereby become responsible for the fertilizer, unless the plaintiff could give him a certain sum for his guarantee. The plaintiff offered $2 per ton for such guarantee. To this said Hall replied, saying that he would not “accept less than $2.50 a ton,” which the plaintiff agreed to pay him, and has paid him to the amount of $1,250.

In their original answer in this cause, filed 8 December, 3922, the defendants unconditionally admitted execution of the contract as alleged, and not until the trial had begun on 1 March, 1923, did the defendants contend that they had executed the contract other, than as individuals, and by leave of the court they filed an amended answer, denying that they had executed said contract as individuals, and claimed that they had signed only as a corporation. This is the only defense that the defendants have set up. The defendants do not allege any defect in the fertilizer.

The defendants are all colored, as. also- the purchasers whom they selected to take over the fertilizer.

The contract is set out in full signed by the plaintiff company, and underneath its signature is written “The above contract is hereby accepted in all of its conditions. (Signed) C. S. Brown, Norman Hall, J. R. Weaver. 6 January, 1920.”

The issues to the jury were as follows:

“1. Did the defendants sign said contract as a committee or agent, and not as individuals, and with the knowledge of the plaintiff ? Answer: ‘No.’

“2. Did the plaintiff receive notes in settlement of the account under the contract, and thereafter take renewals of the same, and extend the time of payment without the consent of the defendants? Answer: ‘No.’

“3. What amount, if any, are the defendants indebted to the plaintiff? Answer: ‘$12,091.46, with interest.’ ”

Upon the above verdict, the court entered judgment against the defendants for the above sum of $12,091.46, and the defendants appealed.

W. W. Rogers and Stanley Winborne for plaintiff.

Jno. JE. Vann, R. G. Bridger and Winston & Matthews for defendants.

OiARK, C. J.

Tbe exceptions present very little for tbe consideration ■of tbe Court, tbe questions before us being almost entirely issues of fact wbetber tbe contract was tbe individual obligation of tbe three defendants wbo signed tbe same or wbetber in fact tbey signed witb tbe understanding tbat tbey represented a partnership consisting of a league of colored farmers which was not a corporation.

Tbe court properly permitted tbe witness McGinnis to state what ■commission was paid to tbe defendant Hall by tbe plaintiff as a consideration for bis signing tbe contract, tbe purpose being to show tbat said Hall was tbe guarantor for a consideration. Farquhar Co. v. Hardware Co., 174 N. C., 376.

Tbe main issue raised by tbe defendants was wbetber tbe defendants signed tbe contract as individuals or as a committee, and tbe court therefore properly admitted evidence tbat Brown, one of tbe three defendants wbo signed tbe contract individually, gave orders as to whom tbe fertilizer contracted for should be shipped.

Tbe defendants having testified tbat tbey signed tbe contract previous to 1920, in tbe same manner in which tbey bad executed this 1920 contract, tbe court properly permitted to be put in tbe evidence tbe contract for 1919. It appeared therefrom tbat tbe defendants executed tbat contract as individuals. It was competent to permit tbe plaintiff to show tbat before tbey accepted this contract signed by tbe defendant, .and especially by tbe defendant Hall, tbat tbey bad investigated tbe financial standing of tbe three defendants before entering into tbe ■contract.

Tbe defendant Hall having testified tbat be bad not consented to taking tbe renewal notes, there was no error in tbe court permitting tbe plaintiff’s witness to testify upon tbe second issue as to wbetber tbe renewal notes were taken witb tbe knowledge and consent of tbe defendants, and tbe statement as to what Hall bad said to him in regard to taking said renewal notes.

Tbe contract on its face having been signed by tbe defendants .as individuals, and tbe defendants having, in their amended answer and by their testimony, undertaken to show tbat it was not their intention to sign as individuals but as committeemen, tbe court properly admitted testimony as to statements made by tbe defendants to its agent admitting their individual responsibility some two years after tbe contract bad been executed.

Tbe eighth and ninth exceptions cannot be considered, for tbe questions excepted to by tbe defendants were not answered, and tbe tenth exception, for tbe refusal to give a prayer for instructions, cannot be ■sustained because it assumed as true statements of facts which were ■controverted.

Tbe eleventh exception was also properly refused because tbe court went further than tbe request and charged tbe jury “that if tbe defendants signed tbe contract as agents or as a committee, it was not necessary for them to have added committee thereto, but it would have been better for them to have done so.”

As to tbe twelfth exception, tbe defendants cannot complain of tbe refusal of tbe court to give the third prayer to charge because it was already fully covered in tbe charge as given on tbe second issue and also on tbe third issue, in which the court instructed tbe jury, “If you find that tbe defendants signed tbe contract as committeemen with tbe knowledge of tbe plaintiff, and afterwards extended tbe time and took tbe renewals without tbe -consent of tbe defendants, you will answer tbe third issue ‘Nothing.’ ”

If tbe court committed any errors in tbe trial of this cause they were in favor of tbe defendants.

In consideration of all tbe exceptions, we find nothing in tbe trial of which tbe defendants can complain.

No error.