Lochner v. Silver Sales Service , 232 N.C. 70 ( 1950 )

59 S.E.2d 218 (1950) 232 N.C. 70

LOCHNER
v.
SILVER SALES SERVICE, Inc.

No. 527.

Supreme Court of North Carolina.

May 10, 1950.

Charles T. Myers, Charlotte, for plaintiff, appellee.

Frank H. Kennedy, and P. Dalton Kennedy, Jr., Charlotte, for defendant, appellant.

ERVIN, Justice.

The motion of the defendant for a compulsory nonsuit challenges the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff. Graham v. North Carolina Butane Gas. Co., 231 N.C. 680, 58 S.E.2d 757.

The defendant insists initially that the action ought to have been nonsuited for lack of evidence that Bernard A. Mollen, the manager of its business at Charlotte, had any authority to bind it to pay the plaintiff "for his services at the rate of $5,000.00 per year."

The sole evidence at the trial relating to the power conferred directly upon Mollen by defendant to fix the compensation of the plaintiff came from witnesses for the defense whose testimony indicated that the defendant had specifically instructed Mollen to employ soliciting agents on a commission basis only and to set their compensation "at ten per cent on their sales, ten per cent on their collections, and $2.00 a day car allowance." Hence, the evidence was insufficient to show that the defendant expressly empowered Mollen to make an agreement obligating it to pay the plaintiff "for his services at the rate of $5,000.00 per year."

But the testimony was ample to warrant the conclusion that Mollen had implied authority from the defendant to enter into such contract with plaintiff. The defendant expressly conferred upon Mollen the power to employ soliciting agents to work for it. Express authority in an agent to hire an employee for his principal necessarily implies power in the agent to contract with the employee as to his compensation according to the methods usual in matters of the kind for which the employment is effected. Strickland v. S. H. Kress & Co., 183 N.C. 534, 112 S.E. 30; In re Opinion of the Justices, 72 N.H. 601, 54 A. 950. The authority of the agent in such respect is not impaired by private instructions of the principal limiting the matter of compensation, when the person hired has no knowledge or notice of such instructions. 2 C.J.S., Agency, § 105.

There is nothing in the record disclosing as a matter of law that the provisions respecting compensation as claimed by the plaintiff were out of the usual course in matters of the kind for which he was employed. Besides, he testified that he had no knowledge or notice of any limitation on Mollen's authority as to the matter of compensation. These things being true, the court did not err in submitting to the jury under the first issue the question of whether Mollen had implied authority to bind the defendant to pay the plaintiff the compensation in controversy.

Moreover, the court rightly rejected the contention of defendant that the contract depicted in the plaintiff's evidence was void for indefiniteness and uncertainty. An agreement for personal services is binding in law if it is certain and definite as to the nature and extent of service to be performed, the place where and the person to whom it is to be rendered, and the compensation to be paid. Croom v. Goldsboro Lumber Co., 182 N.C. 217, 108 S.E. 735; 12 Am.Jur., Contracts, section 64.

The defendant maintains secondarily, however, that the refusal of the court to dismiss the action on a compulsory nonsuit must be held for error, even if the testimony of the plaintiff at the trial was sufficient to establish the proposition that Mollen had implied authority from defendant to make the contract in controversy. This contention is based on the theory that when the plaintiff accepted and used the checks, he necessarily became bound by the recitals of the checks and the accompanying pay vouchers to the effect that he had been compensated in full for all services. The defendant cites Durant v. Powell, 215 N.C. 628, 2 S.E.2d 884; Harris v. Kennedy, 202 N.C. 487, 163 S.E. 458; Walston v. Coppersmith, 197 N.C. 407, 149 S.E. 381; Calkins Dredging Co. v. State, 191 N.C. 243, 131 S.E. 665; De Loache v. De Loache, 189 N.C. 394, 127 S.E. 419, and other decisions on this phase of the litigation.

It is undoubtedly true that the acceptance of a lesser sum in full payment of a larger sum is valid under G.S. § 1-540, but the payment of one account is not the settlement of another. Garland v. Linville Improvement Co., 184 N.C. 551, 115 S.E. 164. What was said in Aydlett v. Brown, 153 N.C. 334, 69 S.E. 243, 245, is apropos here. "We adhere to our former decisions that, where a check is sent in full payment of an account, the creditor can not accept and appropriate the check and afterwards recover the amount of any item which was a part of the account. Having elected to take a part in satisfaction of the whole, he will be held to his agreement; but the principle, of course, does not apply to a transaction not embraced by the account. Whether it is or not may often be a question of law upon admitted facts; but sometimes the evidence, as in this case, may be such as to make it a question for the jury."

There was evidence in behalf of the plaintiff that commissions on sales and collections were payable weekly and composed one account or item of liability, and that the indebtedness in suit was payable quarterly and constituted another account or item of liability; and that the checks and pay vouchers covered the commissions only, and did not embrace the indebtedness in suit or any part of it. In consequence, the trial court did not err in leaving it to the jury to determine whether the indebtedness in suit was included in the alleged accord and satisfaction. Youngblood v. Taylor, 198 N.C. 6, 150 S.E. 614; Standard Oil Co. v. Moore, 195 N.C. 305, 141 S.E. 926; Savannah Sugar Refining Corporation v. Sanders, 190 N.C. 203, 129 S.E. 607; Bogert & Hooper v. Henderson Manufacturing Co., 172 N.C. 248, 90 S.E. 208.

Notwithstanding the conclusion that the plaintiff made out a case for the jury, the defendant is entitled to a new trial on account of the ruling of the trial judge in permitting the plaintiff to introduce in evidence over the objection of defendant advertisements published in the Charlotte Observer on May 23 and 26, 1949, purporting to emanate from the defendant and offering to employ salesmen at a beginning compensation of $100.00 per week.

The advertisements appeared eight months after Mollen had hired plaintiff to work for defendant, seven months after Mollen had relinquished his post as manager of the defendant's business at Charlotte, and four months after the plaintiff had been discharged by the defendant. Manifestly, they had no relevancy whatever to the question of whether Mollen had agreed that the defendant was to pay plaintiff "for his services at the rate of $5,000.00 per year," or to the question of whether Mollen had been authorized by defendant to make any such agreement if he did in fact undertake to do so. Brown v. Featherstone, 202 N.C. 569, 163 S.E. 558.

Furthermore, no sufficient foundation was laid for the introduction of the advertisements. It is a basic principle of the law of evidence that "before any writing will be admitted in evidence, it must be authenticated in some manner—i. e., its genuineness or execution must be proved." Stansbury: North Carolina Evidence, section 195. This rule applies to advertisements in newspapers. 22 C.J., Evidence, § 1138, 32 C.J.S., Evidence, § 733.

There was nothing at the trial to show that the defendant authorized the advertisements, or had anything to do with their appearance in the newspapers. The testimony identifying the newspapers, which contained the advertisements, as issues of the Charlotte Observer proved nothing whatever except the naked fact that they were printed in that newspaper. It had no tendency to fix the defendant with responsibility for their preparation or publication. The advertisements were not properly receivable in evidence on account of the lack of preliminary proof that they emanated from the defendant even if they had been relevant to the issue. Lindsey v. Commercial Discount Co., 12 Cal. App. 2d 345, 55 P.2d 896; Mann v. Russell, 11 Ill. 586; Saenger Amusement Co. v. Murray, 128 Miss. 782, 91 So. 459; Schaff v. Bourland, Tex.Civ.App., 266 S.W. 843; State v. Low, 192 Wash. 631, 74 P.2d 458. The suggestion of plaintiff that the newspaper advertisements were admissible to contradict witnesses for the defendant is without validity; for there was no evidence indicating that any of these witnesses had any connection whatever with them.

These observations of Dean Wigmore are germane: "Printed matter in general bears upon itself no marks of authorship other than contents. But there is ordinarily no necessity for resting upon such evidence, since the responsibility for printed matter, under the substantive law, usually arises from the act of causing publication, and merely of writing, and hence there is usually available as much evidence of the act of printing or handing to a printer as there would be of any other act, such as chopping a tree or building a fence. There is therefore no judicial sanction for considering the contents alone as sufficient evidence." Wigmore on Evidence (3rd Ed.), section 2150.

For the reasons given, the verdict and judgment are vacated, and the defendant is granted a

New trial.