{
  "id": 8520649,
  "name": "S. F. McCOTTER & SON, INC. v. O.H.A. INDUSTRIES, INC.",
  "name_abbreviation": "S. F. McCotter & Son, Inc. v. O.H.A. Industries, Inc.",
  "decision_date": "1981-10-06",
  "docket_number": "No. 813SC190",
  "first_page": "151",
  "last_page": "154",
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    "name": "North Carolina Court of Appeals"
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    "name": "N.C."
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    {
      "cite": "164 S.E. 2d 532",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1968,
      "opinion_index": 0
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      "cite": "235 N.C. 237",
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      "reporter": "N.C.",
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    {
      "cite": "209 S.E. 2d 795",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1974,
      "pin_cites": [
        {
          "page": "799"
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    {
      "cite": "286 N.C. 24",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8563251
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      "year": 1974,
      "pin_cites": [
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          "page": "31"
        }
      ],
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        "/nc/286/0024-01"
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    {
      "cite": "257 S.E. 2d 656",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1979,
      "opinion_index": 0
    },
    {
      "cite": "42 N.C. App. 716",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8555788
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      "year": 1979,
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  "last_updated": "2023-07-14T17:12:28.716896+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges ARNOLD and WEBB concur."
    ],
    "parties": [
      "S. F. McCOTTER & SON, INC. v. O.H.A. INDUSTRIES, INC."
    ],
    "opinions": [
      {
        "text": "VAUGHN, Judge.\nPlaintiff assigns as error the order entered granting a directed verdict in defendant\u2019s favor. Plaintiff argues that the judge improperly excluded testimony which would have established that Bartels was an agent of the defendant with apparent authority to bind defendant to terms of a new oral contract. We disagree and therefore affirm the court\u2019s order.\nThere are two contracts involved in the present cause. The first contract is the original purchase agreement of the automated grain dryer. It is admitted in defendant\u2019s answer that on or about 26 Feburary 1975, plaintiff purchased from defendant an automated grain dryer for the price of $8,000.00. Since the only contact defendant had with plaintiff was through Bartels, defendant\u2019s admission to the purchase agreement constitutes an admission of Bartels\u2019 agency. Admissions contained in a pleading are conclusive against the pleader. Therefore, defendant was estopped at trial from denying that Bartels was acting as its agent under the original purchase agreement.\nDefendant has not admitted the existence of the alleged second contract. This \u201ccontract\u201d is in effect a repurchase agreement with different terms from the original sales contract. At trial, plaintiff attempted to admit into evidence its terms and to impose liability on defendant as principal for breach of the contract made by its agent. Before the contract can be admitted into evidence, however, plaintiff must prove not only the existence of Bartels\u2019 agency but also the authority of Bartels to bind defendant by such a contract. Albertson v. Jones, 42 N.C. App. 716, 257 S.E. 2d 656 (1979). It is this latter element which is lacking in plaintiffs evidence.\nPlaintiff contends that Bartels had apparent authority to bind defendant to a new agreement. Apparent authority is defined as that authority which the principal has held its agent out as possessing and upon which a third party reasonably relies. Zimmerman v. Hogg & Allen, 286 N.C. 24, 31, 209 S.E. 2d 795, 799 (1974). Plaintiff argues that defendant employed Bartels as general manager and thereby endowed him with powers greater than those of a sales agent.\nAt tri\u00e1l, plaintiff attempted to prove that Bartels was a general manager by statements made by Bartels to plaintiff and by a supplier\u2019s agreement. Out-of-court statements of an alleged agent are inadmissible to prove an agency relationship. Commercial Solvents v. Johnson, 235 N.C. 237, 69 S.E. 2d 716 (1952). They are likewise inadmissible to prove the position of the agent or that he was acting within the scope of his authority. D.L.H., Inc. v. Mack Trucks, Inc., 3 N.C. App. 290, 164 S.E. 2d 532 (1968). The court, therefore, properly excluded plaintiffs testimony that Bartels told him he was defendant\u2019s general manager and had authority to enter into an agreement to resell.\nPlaintiff argues the supplier\u2019s agreement is extrinsic evidence that Bartels was a general manager. Bartels is the only signer of the agreement, and it is he who listed his title as general manager. Although a witness testified that the supplier\u2019s agreement was mailed to defendant\u2019s office in Georgia, the witness was unsure whether Bartels brought the agreement back or if it was returned by mail. One cannot conclude, therefore, that defendant saw Bartels\u2019 signature as general manager and ratified his representations by returning the agreement without change. Without evidence to that effect, the supplier\u2019s agreement is simply another declaration by the agent. We also note that nowhere in plaintiffs testimony does he suggest he relied on this agreement in concluding Bartels was general manager. In fact, his testimony indicates otherwise:\n\u201cQ. Now, at the time in April of 1977 \u2014of 1975 when you talked with Mr. Bartels, did you know his title with the company?\nObjection.\nSustained.\nA. Only what he told me. I mean he didn\u2019t walk in my office and present me a legal document telling me what he was.-He just told me \u2014 He didn\u2019t say he was Vice President or General Manager or anything. He said he represented O.H.A. . . . .\u201d\nWe conclude that plaintiff has presented no evidence establishing Bartels as anything other than a sales agent of defendant. As a sales agent, he had authority to make the original sales contract. Unless otherwise agreed, however, the authority to sell does not include the authority to rescind or modify terms of the sale after its completion. Restatement (Second) of Agency \u00a7 66 (1958). Bartels, therefore, had no'authority to enter into a completely new agreement with plaintiff which, without con-, sideration, placed an obligation on defendant to sell the grain dryer and gave plaintiff the option of a return of his purchase price or application of the proceeds to a larger grain dryer.\nBy relying on the authority of a sales agent to negotiate a new contract after the completed transaction, plaintiff acted at his own risk, especially here where the sales agreement was written and the alleged new contract was oral. In the absence of evidence that defendant had knowledge of and acquiesced to the terms of this later unauthorized contract with plaintiff, defendant was entitled to a directed verdict.\nAffirmed.\nJudges ARNOLD and WEBB concur.",
        "type": "majority",
        "author": "VAUGHN, Judge."
      }
    ],
    "attorneys": [
      "Mayo and Swindell, by Hiram J. Mayo, Jr., for plaintiff appellant.",
      "Ward and Smith, by Thomas E. Harris, for defendant ap-pellee."
    ],
    "corrections": "",
    "head_matter": "S. F. McCOTTER & SON, INC. v. O.H.A. INDUSTRIES, INC.\nNo. 813SC190\n(Filed 6 October 1981)\n1. Principal and Agent \u00a7 4.2\u2014 proof of agency \u2014extrajudicial statements of agent\nOut-of-court statements of an alleged agent are inadmissible to prove the position of the agent or that he was acting within the scope of his authority, and the trial court therefore properly excluded plaintiffs testimony that defendant\u2019s employee told him that he was defendant\u2019s general manager and had authority to enter into an agreement for defendant to resell a grain dryer plaintiff had purchased from defendant.\n2. Principal and Agent \u00a7\u00a7 4.2, 5.2\u2014 scope of authority \u2014declaration by agent \u2014 authority of sales agent\nEvidence that defendant\u2019s agent listed his title as general manager when he signed a supplier\u2019s agreement for sale of a grain dryer to plaintiff constituted a mere declaration by the agent which was incompetent to show his position and authority, and plaintiffs evidence was therefore insufficient to show that the agent was anything other than a sales agent who had authority to make the original sales agreement but had no apparent authority to bind defendant to an agreement to resell the grain dryer and to give plaintiff the option of a return of his purchase price or application of the proceeds to a larger grain dryer.\nAPPEAL by plaintiff from Peel, Judge. Judgment entered 16 December 1980 in Superior Court, PAMLICO County. Heard in the Court of Appeals 22 September 1981.\nPlaintiff initiated an action against defendant for breach of an oral contract made by its alleged agent Bartels. The court granted defendant\u2019s motion for a directed verdict at the close of plaintiffs evidence.\nPlaintiff first met Lewis Bartels at a promotional meeting for O.H.A. Industries, American Grain Dryers. On 26 February 1975, plaintiff purchased an automated grain dryer from O.H.A. Industries. Bartels signed the purchase order. Approximately one month later, the grain dryer was shipped to plaintiff in a freight truck containing other O.H.A. dryers. By that time, the equipment needs of plaintiff had changed. Plaintiff alleges that defendant, through its agent Bartels, negotiated a new contract in April of 1975, whereby defendant agreed to pick up the grain dryer and resell it. Upon resale, defendant would return to plaintiff the dryer\u2019s purchase price or apply it toward the purchase of another grain dryer at plaintiffs option. In September or October of 1977, the machine was removed. Plaintiff later demanded return of his purchase price which defendant failed to pay.\nMayo and Swindell, by Hiram J. Mayo, Jr., for plaintiff appellant.\nWard and Smith, by Thomas E. Harris, for defendant ap-pellee."
  },
  "file_name": "0151-01",
  "first_page_order": 179,
  "last_page_order": 182
}