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Hodges v. Holderby

Supreme Court of North Carolina
Aug 1, 1857
49 N.C. 500 (N.C. 1857)

Opinion

August Term, 1857.

Where one, in the absence of a principal, employs his general agent to carry off goods in the principal's wagon, and sell them for him, contrary to his orders but the latter recognizes the act of the agent, and receives pay for the service of his wagon and team, and of the agent, this does not bind the principal to account for money received by such agent, and not paid to the owner of the goods.

ACTION of ASSUMPSIT, commenced by a warrant, and tried before his Honor, Judge ELLIS, at the Fall Term, 1856, of Watauga Superior Court.

The plaintiff declared for a balance due for money had, and received by him, for the sale of a quantity of bacon.

It was proved, that one McGuire, was employed by the defendant as a clerk in a store, in the County of Watauga, and was his general agent for the transaction of business; that on one occasion, when the defendant was absent from his place of business, he wrote to McGuire to purchase a load of iron, at a given price, and take it down to Rockingham county, and bring back a return load of goods for his store; that the iron was not to be purchased at the price to which he was limited by the defendant. Rather than take the wagon to Rockingham empty, he took in, as a part of his load, a quantity of bacon, belonging to the plaintiff, which at the request of the plaintiff, he sold and received the money for the same. Upon his return to Watauga, McGuire paid the plaintiff part of the money, and informed the defendant what he had done in relation to the bacon, and other things taken off in the wagon, to which the latter replied, "it was all right." The price for hauling the bacon, was paid by the plaintiff to the defendant.

The question was, whether the evidence disclosed an agency from the defendant to McGuire, so as to make the former liable for the price of the bacon. His Honor charged the jury, that the facts set forth, showed such an agency as did make him liable. Defendant excepted.

Verdict and judgment for the plaintiff. Appeal by the defendant.

Gaither, for the plaintiff.

Lenoir, and Avery, for the defendant.


The plaintiff's declaration is for money had, and received, by the defendant to his use. Now it is very certain, that when the money was received by the defendant's clerk, McGuire, upon the sale of the plaintiff's bacon, it was not received, either expressly, or impliedly, by the defendant. Up to that time, McGuire, in taking the bacon to market, so far from acting within the scope of the authority given him by the defendant, was acting directly against it; for the defendant had directed him to carry down a load of iron in his wagon. There is no pretence that the defendant was a common carrier, and that McGuire was his servant, employed in the business of transporting goods. The price of the bacon then, was received by McGuire alone, for the use of the plaintiff, and the latter must at that time, have so understood it, and he seems to have acted on that understanding when he accepted a part of the money from McGuire, and paid the defendant for the hauling and sale of the bacon.

The question, then, is whether the expression used by the defendant, when McGuire returned with the wagon, and told him what he had done, that "it was all right," changed the character of the transaction, and made him responsible to the plaintiff for the price of the bacon. The reception of pay for the use of the wagon, and the time and labor of his clerk, in selling the bacon, could not have the effect to make the defendant liable, because he was entitled to it whether McGuire had collected the money or not. Nor are we aware of any principle which can make him responsible by the mere effect of his recognizing the acts of his clerk as all right. The clerk had done several acts not authorized by his previous orders, which the defendant thought proper, under the circumstances, to approve. He certainly did approve, among other things, of his clerk carrying down, and selling the bacon for the plaintiff, and as the agent of the plaintiff, but it does not necessarily follow, that he thereby intended to assume the responsibility of his clerk's faithfulness in collecting and paying over the price to the plaintiff. In that transaction, we are satisfied from the circumstances, that the plaintiff looked to McGuire alone for his money, and did not think of holding the defendant responsible for it, until he afterwards found that McGuire had been faithless, and had "kept back part of the price."

PER CURIAM. The judgment must be reversed and a venire de novo awarded.


Summaries of

Hodges v. Holderby

Supreme Court of North Carolina
Aug 1, 1857
49 N.C. 500 (N.C. 1857)
Case details for

Hodges v. Holderby

Case Details

Full title:D. B. HODGES v . N.M. HOLDERBY

Court:Supreme Court of North Carolina

Date published: Aug 1, 1857

Citations

49 N.C. 500 (N.C. 1857)