Witz v. . Gray , 116 N.C. 48 ( 1895 )

This is an action of Witz, Biedler Co. against J. M. Gray and S. A. Gray, husband and wife, to recover $735.85 for goods sold to defendants, for which note, marked Exhibit A, was afterwards given to plaintiffs, and is brought to this Court upon a motion for a receiver before Brown, J., which was refused, and plaintiffs (54) appealed.

This motion is made then in aid of the main relief demanded, and to entitle plaintiffs to this relief, they must allege and show that they are entitled to the main relief, that is, that they are entitled to recover a personal judgment against S. A. Gray, if she were a feme sole. And then they must show their equity to entitle them to this ancillary relief in aid of their main relief.

Plaintiffs cannot have this ancillary relief under the first count in their complaint, for the reason that they have failed to name and describe any separate estate as belonging to the feme defendant. Jones v.Craigmiles, 114 N.C. 613.

Plaintiffs cannot have this relief under the second count in their complaint for the same reason assigned above (Jones v. Craigmiles, supra), and for the further reason that in this count they allege that they sold the goods to J. M. Gray and that he is their debtor, and not S. A. Gray, the wife.

Nor can plaintiffs have this relief under the fourth count in their complaint, for the reasons given why they are not entitled to relief under the first count (Jones v. Craigmiles, supra), and for the further reason that if they are entitled to recover on this count in their complaint, it would be upon the grounds of fraud practiced on plaintiffs by defendants in the purchase of the goods shipped to them, and that the title never vested in defendants, but is still in plaintiffs. But it is not alleged that the goods now in the store of defendants are the same shipped to them in 1893, which it would be necessary to allege and show to entitle plaintiffs to their motion under this count. In fact it was conceded by the learned counsel for plaintiffs that they were not entitled to this motion under either of these three counts; but he insisted that he is entitled to have a receiver appointed on the third count in his (55) complaint. And this brings us to one of the questions to be considered and determined in this appeal. And we are of the opinion that plaintiffs are not entitled to a receiver under this count. We have said that plaintiffs are not entitled to have this ancillary relief unless they are entitled to the main relief demanded in their complaint; that is, unless they are entitled to a personal judgment against Mrs. Gray, were she a feme sole. It is not alleged that Mrs. Gray signed the note declared on, but that J. M. Gray, the husband, signed the note, and that he was the agent of his wife and as such agent was authorized to do so. The allegation of the complaint that plaintiffs insist constituted the husband the agent of his wife and authorized him to execute the note sued on, marked Exhibit A, is as follows: "That J. M. Gray, her husband, is the active business manager of the said business and the same is carried on with his consent." Defendants admit that J. M. Gray is the husband of S. A. Gray, and that he is her clerk in said store, selling the goods therein, and that he is the general manager of the same, and that all this is by the wife's consent. But defendants deny that J. M. Gray was the agent of S. A. Gray to sign said note, and Mrs. Gray denies that she had any knowledge of the fact that her husband had given such a note, or that she has in any way ratified the same; that her husband in signing said note acted without any authority from her to do so, and without her knowledge or consent.

This presents the question as to the validity of the note, and involves the question of principal and agent. It was admitted on the argument that a husband may be the agent of his wife; and it is admitted in the answer of defendant that J. M. Gray is the clerk and general manager of his wife's store, and in these respects may be considered her agent. But did this make him her agent to sign her name to a promissory (56) note, such as Exhibit A, for goods bought sometime before, without her knowledge or consent? An agent to bind his principal must act within the scope of the power given by the principal. He may be an agent for one or several things, and no agent for many other things. "An agent authorized to attend to and manage a grocery store, a mere clerk employed in a merchant's store, has no implied power to bind his principal by the execution of negotiable paper." Meacham on Agency, sec. 391, p. 235. "An agent, authorized to buy goods and pay for them, is not thereby authorized to draw, accept or indorse negotiable paper, must see to it that his authority is adequate, and both they and the agent must keep strictly within the limits fixed to the agent's authority, or the principal will not be bound." Meacham, supra, see 393, p. 236.

It therefore seems to us that the execution of the note sued on by J. M. Gray was outside of his agency and in excess of any authority alleged or shown by plaintiffs. And if the defendant S. A. Gray was a single woman, plaintiffs would not be entitled to a personal judgment against her on said note; and plaintiffs are certainly not entitled to more than they would be if she were unmarried.

We are of opinion that plaintiffs have failed to establish their main relief — the right to a personal judgment on this note against Mrs. Gray, if she were a single woman; and that being so, they cannot have the ancillary relief asked in this motion in aid of a relief they are not entitled to.

Plaintiffs' counsel contended it would be a great hardship to his clients to deny them this relief. If this were true, it would not authorize the Court to grant the order unless plaintiffs had made a case entitling them to the relief sought under the law and practice of the courts. But the Court fails to see the great hardship complained (57) of, and we do not mean to say by this that plaintiffs should not have pay for their goods. But it does not appear that there was any fraud practiced on plaintiffs. They knew Mrs. Gray was a married woman, and it is not alleged that she or her husband represented her as a free trader; in fact, the knowledge that she was a married woman, doing business in her name, and her husband acting the part of a clerk, would have been sufficient to put the most prudent business men on guard. But the plaintiffs, knowing all these facts, sold her their goods (probably at a very good profit), took the chances, and are now having trouble to collect their money, as most business men would have expected; and, though costly, it may be a valuable lesson. There is no error in the judgment appealed from.

Affirmed.

Cited: Bazemore v. Mountain, 121 N.C. 61; Bank v. Drug Co., 152 N.C. 146;Stout v. Perry, ib., 313.

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