Whitehead v. Reddick, 34 N.C. 95, 12 Ired. 95 (1851)

June 1851 · Supreme Court of North Carolina

34 N.C. 95, 12 Ired. 95

WILLIAM B. WHITEHEAD vs. BURWELL REDDICK.

Where an agreement purported to be between A. B. “ for and on behalf of the Albemarle Swamp Land Company of the one part” and “ B. R. of the other part” and stipulated, that the parly of the second part should get “ on the land of the party of the first part” a certain quaantity of lumber, and deliver ft -&c., and in the conclusion it is said “ in witness whereof A. B. for and on .. behalf of the party of the first part, being the Albemarle Swamp Land Company,” and B.R. as the party of the second part,have hereunto set their hands and seals, and the agreement was signed by “ A. B. for and in behalf of the Albemarle Swamp Land Company.” Held that this was a contract between ■the Company and B. R., and that A.' B. could support no action for a breach ■of it in his own name, but that the action must be in the name of the Com • . -pany.

• Appeal from the Superior Court of Law of Beaufort 'County, at the Spring Term 1851, his Honor Judge Caldwell presiding.

This is an ac-tioa ef covenant: plea, non est factum. The instrument is in the following form : “ Know all men by these presents, that William B. Whitehead, for and on behalf of the Albemarle Swamp Land Company of the one part, and Burwell Reddick and Willis S. Reddick on the other part, do enter into-' the following agreement: The party of the second part agree to get on the land of the party of the first part, near Plymouth, N. C., the following kinds of lumber, and deliver the same on board such vessels at Shell Landing, as the party of the first part may send for the same, to wit: 500,000 to 700,000 juniper shingles of the best quality, to be thirty inches long, &c.” (Then describing other kinds of shingles and staves, and juniper bolts,) and the said party of the first part agrees to pay to the party of the second part for each and every thousand shingles so got and delivered, $10 for each and evrey thousand staves) $>12, &e.: The said lumber to be considered as received by the party of the first part when delivered on board such vessels as may, from time to time, be sent for it, and payment made on presentation of the Captain’s receipt or bill of lading, subject to deductions ior such a& may be thrown out as callings, when the said lumber shall be sent to market. All the foregoing timber to be gotten on or before the first of January, 1S48 ; at which time the getting or making is to cease, if desired by, either party. In witness whereof, . William B. Whitehead for and on behalf of the party of the first part, being the Albemarle Swamp Land Company, and 'Harwell Reddick and Willis S. Reddick as the party of the second part, have hereunto set their hands and affixed their seals, this 23d day of Juno, 1846.”

(Signed) “ W. B. WHITEHEAD, for and ,geal, on behalf of the Albemarle Swamp Land Comp’y, ' ''

B. REDDICK, (Seal.)

W. S. REDDICK, (Seal.)

On the trial it was objected by the defendant, that Whitehead could not maintain an action on the agreement in his own name,, but that it ought to have been brought by the Albemarle Swamp Land Company — which, it was admitted, was a copartnership consisting of the said Whitehead and five other persons. Of that opinion was the Court; and the plaintiff submitted to a non suit, and appealed.

J. W. Bryan, for the plaintiff.

Donnell, for the defendant.

Ruffin, C. J.

The natural supposition is, that, in con. tracts made by agents, the stipulations are by and with the principals. Yet, as agents may bind themselves for their principals, and as the language of agreements is often inex-plicit, it irequently happens, that it is not eásy to determine whether the contract is that of the agent personally or of the principal exclusively. In this case, however, there is no difficulty of that sort. The instrument purports to b# between two parties and only two; and the question is,

Whitehead or the Land Company is one of these two.— Perhaps, from the structure of the sentence comprising the premises, the character of the instrument in this respect might be deemed somewhat equivocal. But the first stipulation, contained in the next sentence, speaks explicitly. It is, that the defendants “ agree to get on the land of the party of the first part” the lumber specified. The defendants were, undoubtedly, not to work on Whitehead’s land but on that of the Company. Therefore, the Company is here shown to be the first party to the contract. In the same manner it is seen, in other parts, that the timber is to be got for, and delivered to the Company, and paid for by them —they being described all along as “ the party of the first part.” Moreover, in the conclusion of the articles it is plainly declared, that Whitehead does not execute them, as being himself the party to them, but executes them as the deed of the Company, by saying that he does so “ for and on behalf of the party of the first part, being- The Albemarle Swamp Land Company.” It is thus clear, that the deed, throughout, calls the Company the party of the first part; and hence the plaintiff is not exclusively that party; and the judgment must be affirmed.

Per Curiam. Judgment affirmed.