This evidence, if true, and we must accept it as such on a motion to nonsuit, is, we think, sufficient for a jury to find that Bruton was acting as agent for defendants Snellings in making the purchases or, if not so acting, Snellings had ratified the act of purchasing in the name of and for defendants Snellings. The jury may find that defendants Snellings still owe under the contract a sum sufficient to pay all of the unpaid material claims. If these facts are found by jury, plaintiffs are entitled to recover. McNeely v. Walters, 211 N.C. 112, 189 S.E. 114; Construction Co. v. Holding Corporation, 207 N.C. 1, 175 S.E. 843; Lumber Co. v. Motor Co., 192 N.C. 377, 135 S.E. 115; Starkweather v. Gravely, 187 N.C. 526, 122 S.E. 297; Hardware Co. v. Banking Co., 169 N.C. 744, 86 S.E. 706; Metzger Bros. v. Whitehurst, 147 N.C. 171; Miller v. Lumber Co., 66 N.C. 503. Where one seeks as a subcontractor to enforce a lien against the owner, he must of course notify the owner of his claim before settlement has been made with the contractor, and if the relationship is that of independent contractor and not that of principal and agent, the owner is not liable for the materials furnished unless he has on hand funds owing to the contractor when he is notified of the claim.
Having received the benefits of the unauthorized act the principal will be deemed to have ratified the act and to have barred his repudiation of it to the injury of the other party. He cannot accept the benefits without bearing the burdens; he must duly repudiate the transaction or perform the contract in its integrity (entirety). Lane v. Dudley, 6 N.C. 119; Miller v. Lumber Co., 66 N.C. 503; Rudasill v. Falls, 92 N.C. 222; Christian v. Yarborough, 124 N.C. 72; Hall v. Giessell, 179 N.C. 657." Jones v. Bank, 214 N.C. 794.
He cannot accept the benefits without bearing the burdens; he must duly repudiate the transaction or perform the contract in its integrity. Lane v. Dudley, 6 N.C. 119; Miller v. Lumber Co., 66 N.C. 503; Rudasill v. Falls, 92 N.C. 222; Christian v. Yarborough, 124 N.C. 72; Hall v. Giessell, 179 N.C. 657. The appellants knew nothing of the execution of the notes until September, 1927, when the plaintiff demanded payment.
The substance of ratification is confirmation after conduct. 2 C. J., 467; Bank v. Justice, 157 N.C. p. 375; Osborne v. Durham, 157 N.C. 262; Sprunt v. May, 156 N.C. 388; Johnson v. R. R., 116 N.C. 926; Rudasill v. Falls, 92 N.C. p. 226; Miller v. Lumber Co., 66 N.C. 503; Patton v. Brittain, 32 N.C. 8. As we understand the record, the case was tried upon the theory that, although the defendant may not be able to recover for his loss from the insurance company, yet he would still be liable to the plaintiff if he, at any time, undertook to ratify what the agent had done in his behalf.
The only question which has given us concern is whether the evidence brings the defendant within the rule. Plaintiffs cite Miller v. Land Co., 66 N.C. 503. In that case it was denied that the person holding himself out as agent of defendant had any authority to buy the goods for defendant.
In this case there is evidence that the defendant had the lumber, or at least some of it, in his possession, and told the plaintiff (497) that he had some of it, and it does not appear whether he had supplied his alleged agent with sufficient funds to make the purchases time to time. Surely he should not be allowed to keep the lumber if he had failed in this respect and the lumber had not been paid for. Patton v. Brittain, 32 N.C. 8; Miller v. Lumber Co., 66 N.C. 503; Brown v. Smith, 67 N.C. 245. There is evidence to the effect that the defendant stated to the plaintiff that the property was given to him by order of the Court, but the jury might have rejected this testimony and found the facts in accordance with the other testimony in the case and the plaintiff's contention, and the rule is that the plaintiff is entitled to have the case go to the jury, if, in any view of the evidence, or by any combination of the facts which the testimony tends to prove, he may be able to recover.
Messrs. A. M. Lewis and Busbee Busbee, for plaintiffs. Messrs. Batchelor Son for defendants, cited McKethan v. Terry, 64 N.C. 25; Mayo v. Cotten, 69 N.C. 289; Miller v. L. L. Co., 66 N.C. 503; Mason v. Williams, Ibid, 570; Smith v. Hunt, 68 N.C. 482; Blackwood v. Jones, 4 Jones Eq. 54; Gunn v. Barry, 15 Wallace, 610; Sherrill v. Sherrill, 73 N.C. 8. PEARSON, C. J.