#### BRITTAIN v. WESTHALL.

(Filed May 24, 1904).

1. AGENCY — Principal and Agent — Sufficiency of Evidence.

In this action to recover a balance dne for lumber, the evidence is sufficient to be submitted to the jury on the question whether the buyer was the agent of the defendant.

2. AGENCY — Principal and Agent — Evidence—Notice.

If a principal receives goods purchased by an agent and appropriates them to his use, he is liable therefor, unless he can show that he furnished his agent with the necessary funds, but that the agent bought on credit, of which fact the principal had no notice.

3. AGENCY — Corroborative Evidence.

Checks issued by an agent bearing an entry in the hand-writing of the plaintiff that they were given for timber bought for the defendant, are competent only to corroborate the evidence of the plaintiff that he was told so by the agent.

ActioN by D. M. Brittain against W. IT. Westhall, heard by Judge W. H. Neal and a jury, at February Term,, 1904, of the Superior Court of Catawba County. Erom a judgment for the defendant the plaintiff appealed.

L. L. Witherspoon and M. H. Yount, for the plaintiff.

Self & Whvtener, for the defendant.

Walker, J.

The plaintiff brought this action before a justice of the peace to recover the sum of $182, the balance claimed to be due for lumber sold and delivered to the defendant through one J. A. Townsend, who, the plaintiff alleged, was the agent of defendant to buy the lumber, but this» allegation was denied by the defendant, and he also denied *493that be i= indebted to the plaintiff in any amount. The justice gave judgment for the plaintiff and the defendant appealed, and the Superior Court, after hearing the evidence, nonsuited the plaintiff on motion of the defendant and the latter excepted and appealed.

The case turns upon the question whether the said Townsend, at the time the lumber was purchased, was the agent of the plaintiff and authorized to buy for him as he did. In order to establish the affirmative of this issue joined between the parties, the plaintiff introduced in evidence an agreement between Townsend and Westhall, dated January 13, 1903, by which the former agreed to ship to the latter all the lumber to be manufactured from timber taken from, and to be taken from, the land described in a certain deed of trust made by Townsend to A. S. Abernathy, as well as from all other land the timber on which the said Westhall had already contracted or thereafter contracted to buy, and all other lumber which Townsend should buy from any and all other persons. It was further agreed that Westhall should credit Townsend on the debt secured by the deed of trust with the money due for lumber manufactured from timber cut on the land described in the deed of trust at certain prices specified in the contract, and that Townsend should receive credit at the same prices for the lumber bought by him and shipped to the defendant with certain deductions.

The contract contains this clause: “Said party of the second part is to furnish to the party of the first part, at his discretion, such sums of money as may be necessary for him. the said party of the first part, to pay for such lumber as he may buy from such other person or persons, but the said party of the first part shall buy such lumber only at such prices as shall be agreed upon between him and the party of the second part, and said purchases of lumber so made by the party of the first part shall always be in the name of and for *494tbe party of tbe second part, in whom tbe title shall always be and remain. It is understood and agreed between tbe parties that tbe party of tbe second part is not to pay for or become chargeable with tbe cost of logging or manufacturing into lumber tbe timber taken from said land mentioned' and described in said deed of trust, or for tbe timber bought by or to be bought by tbe party of tbe second part, nor is be to pay for or become chargeable with tbe cost of hauling tbe timber from said land to tbe place of manufacturing tbe same into lumber, or for hauling said lumber from tbe place of manufacture to tbe place of shipment.”

Tbe plaintiff, examined in bis own behalf, testified that be sold tbe lumber in 1903 to Townsend, who said that he was buying it for Westhall; that be sold it on Westhall’s credit, and Townsend said that Westhall was to furnish the money. Tbe plaintiff hauled tbe lumber to tbe railroad station and turned it over to Townsend, who paid for it with checks drawn by him on tbe bank payable to tbe plaintiff’s order. On tbe face of each check was this endorsement in tbe plaintiff’s bandwriting: “This check for lumber bought for W. IT. Westhall.” Tbe defendant objected to tbe introduction of tbe checks; tbe objection was overruled and tbe defendant excepted. Tbe other testimony was not objected to. The plaintiff further testified that be bad been paid $250 on tbe contract and sale of tbe lumber, and that there is still due him a balance of $182 by tbe defendant. Tbe latter told tbe plaintiff that be bad possession of a part of tbe lumber, and tbe plaintiff saw about 10,000 feet of tbe lumber in tbe possession of tbe defendant after be took charge of Townsend’s property. Tbe lumber was worth $10.50 per thousand feet. Townsend bad become a bankrupt and left tbe State' and tbe Court ordered bis property to be turned over to tbe plaintiff. Tbe plaintiff knew nothing of tbe written contract or its contents until after be bad sold tbe lumber *495to Townsend. He relied on the latter’s statement that he was buying for Westhall.

A witness, A. S. Abernathy, testified that he had a conversation with the plaintiff before this suit was brought, in which he said that Townsend told him he bought the lumber for Westhall, though the plaintiff did not claim that Westhall was liable.

It is well settled that on a motion to nonsuit or to dismiss under the statute, which is like a demturrer to evidence, the Court is not permitted to pass upon the weight of the evidence, but the evidence must be accepted as true and construed in the light most favorable to the plaintiff, and every fact which it tends to prove must be taken as established, as the jury, if the case had been submitted to them, might have found those facts upon the testimony. Purnell v. Railroad, 122 N. C., 832; Hopkins v. Railroad, 131 N. C., 463. Tested by this rule, we think there was some evidence which tended to show that Townsend was acting as agent for the defendant when he bought the lumber. The clause in the contract between Townsend and the defendant under which the latter agreed to furnish the money with which Townsend was to buy the lumber, the title to the lumber to remain in the defendant, the prices to be fixed by agreement between them and the purchases to be made for and in the name of the defendant, was evidence fit to be considered by the jury upon the question of agency. If Townsend was buying the lumber for the purpose of selling it to the defendant, such a stipulation as the one we have just mentioned would hardly have been inserted in the contract. If such was the nature of the transaction, why did the defendant furnish the money to make the purchases and require that the lumber should be bought in his name and for him and that the title should be in him. This is rather an unusual method of buying property through one who is not the agent of the purchaser, *496but who is buying for himself for the purpose of reselling. If Townsend was buying on his own account, but under an agreement to sell the lumber so bought by him to the defendant, we do not see why the “purchase should be made for the defendant and in his name, and why the title should vest in the defendant at the very time the purchase was made. It may be that all this can be explained, but it at least shows that the plaintiff is entitled to have the contract submitted to the jury for their consideration, in connection with any other evidence which may tend to strengthen or weaken the argument based upon it.

But the plaintiff himself testified that he sold the lumber to Townsend and Westhall under the contract; that Townsend said he was buying the lumber for Westhall, who furnished the money, and the plaintiff further testified that he sold the lumber on Westhall’s credit. This evidence was not objected to by the defendant, and we are unable to see why it was not proper for the jury to consider it. It is true that an agency to buy for cash does not imply authority in the agent to pledge 'the credit of the principal. An agent can only contract for his principal within the limit of his authority, and persons dealing with an agent having limited powers must generally inquire as to the extent of his authority. But if the agent is authorized to buy for cash, to be furnished by the principal, and he violates his instructions and buys on credit, and the principal thereafter receives the goods so bought by his agent and appropriates them to his own use, he is liable for the price unless he can show that he furnished his agent with the necessary funds to buy the lumber and the latter nevertheless bought on a credit, and that the principal received the goods without any notice of that fact and will be prejudiced if he is made to pay for them.

In this case there is evidence that the defendant had the lumber, or at least some of it, in his possession, and told *497tbe plaintiff tbat be bad some of it, and it does not appear whether be bad supplied bis alleged agent with sufficient funds to make tbe purchases from time to time. Surely be should not be allowed to keep tbe lumber if be bad failed in this respect and tbe lumber bad 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 tbat tbe defendant stated to tbe plaintiff tbat tbe property was given to him by order of tbe Court, but the jury might have rejected this testimony and found tbe facts in accordance with tbe other testimony in tbe case and tbe plaintiff’s contention, and tbe rule is tbat tbe plaintiff is entitled to have tbe case go to tbe jury, if, in any view of tbe evidence, or by any combination of tbe facts which tbe testimony tends to prove, be may be able to recover.

Tbe evidence in tbe case in support of tbe plaintiff’s cause of action may not be very conclusive, and tbe defendant may show tbat be is tbe rightful owner of tbe lumber, but we are not at liberty to express any opinion as to these matters, nor are we permitted to weigh tbe testimony and decide where tbe preponderance is. We can only pass upon tbe question whether there was any evidence legally sufficient to be submitted to tbe jury for tbe purpose of sustaining tbe plaintiff’s side of tbe issue. We think there was some evidence of tbat character upon tbe record as now presented. Tbe entries on tbe checks could be competent only in corroboration of tbe plaintiff, who testified tbat Townsend told him be was buying for Westhall, and be (tbe plaintiff) sold tbe lumber on Westhall’s credit. We do not now perceive upon what ground they can be competent as substantive testimony. Tbe mere declaration of tbe plaintiff tbat tbe checks were given for lumber bought for Westhall is not competent even to prove tbat they were so given, as against tbe defendant, *498nor that Townsend was authorized to buy on the credit of Westhall, nor to prove any other material fact. It is merely an unsworn declaration, which is not substantive proof, and the fact that the checks went into the possession of Westhall does not change its character or impart to it probative force.

The judgment of nonsuit must be set aside and a new trial awarded.

Error.