#### J. G. McCORMICK, Trustee, v. S. B. WILLIAMS.

(Filed 25 May, 1910.)

1. Principal and Agent — Declarations—Evidence.

Before the declarations of an alleged agent are competent, the fact of agency must be at least prima facie shown by other evidence ; and when a purchaser at a mortgage sale, in an action for •damages arising from his failure to comply with his bid, relies upon a release of his bid by the agent of the one holding the notes thereby secured, the agency must thus be established before the agent’s declarations are competent.

2. Same — Mortgage Sale — Release.

When upon demand made of the last and highest bidder at a sale of land, under a deed of trust, he fails or refuses to comply with his bid and make a payment accordingly, and the sale is a *639valid one, the trustee may sue such .bidder for the full amount of the bid and recover it with interest and cost; but when the trustee elects to resell the land for the bidder and at the second sale it brings a less price, the amount of dámages recoverable is the difference between that bid at the first sale and the market value of the property, in arriving at the determination of which the jury may consider as evidence the amount bid at the first sale.

Appeal by defendant from Lyon, J., at December Term, 1909, of ROBESON.

Tbe facts are sufficiently stated in tbe opinion of tbe Court.

McLean & McLean for plaintiff:

McNeill & McNeill and Shaw & Johnson for defendant.

Walker, J.

Tbis action was brought by tbe plaintiff for tbe recovery of tbe sum of $585, it being tbe difference between tbe amount bid by tbe defendant at a sale made by tbe plaintiff, as trustee, of certain property conveyed to bim by deed of trust, and tbe amount bid at a second sale of tbe same property, wbicb was made necessary by tbe failure of tbe defendant to comply witb bis bid wbicb was made at tbe first sale.

It appears in tbe case tbat H. D. Williams executed several deeds of trust to tbe plaintiff to secure certain debts therein described, each of wbicb said deeds contained a power of sale, to be exercised by tbe trustee.in case of default in tbe payment of tbe debts. The trustee, in accordance witb tbe terms of tbe deeds of trust, and after default in tbe payment of tbe debts, sold tbe property at public auction after due advertisement, and tbe defendant, S. B. Williams, purchased, at tbe sale, a sawmill plant for tbe sum of $785, to be paid in cash. After demand made upon bim for a compliance witb bis bid and tbe payment of tbe purchase money, and tbe refusal to comply, tbe-plaintiff, as trustee, resold tbe sawmill plant, when it was purchased by T. R. Toler, at tbe price of $200.

Tbe defendant claimed tbat be bad been released from bis bid by tbe Akers Lumber Company, tbe owner of tbe notes secured by tbe deed of trust. It is not contended tbat be was released otherwise than by J. T. Burrus, who, defendant alleges, was acting, at tbe time, as agent of tbe lumber company, but we find no evidence in tbe case to establish tbe agency of Burrus.

It is well settled by tbe authorities tbat an agency cannot be established by tbe acts dr declarations of tbe person who is alleged to be agent. Tbe agency must first be shown, at least prima facie, by other evidence, before tbe acts and declarations *640of tbe agent become competent evidence against tbe alleged principal. Jackson v. Tel. Co., 139 N. C., 347; Francis v. Edward, 77 N. C., 271; Daniel v. R. R., 136 N. C., 517.

In tbis case tbe court charged tbe jury to disregard all tbe testimony as to any conversation or agreement between tbe defendant and J. T. Burrus, upon tbe ground, of course, tbat there was no evidence which tended to show tbat Burrus was authorized to act for tbe Akers Lumber Company, and to release tbe defendant from tbe obligation which be bad incurred by bidding for and buying tbe property at tbe first sale. We can see no error in tbis instruction, as there was no evidence introduced by tbe defendant to sustain bis allegation tbat Bur-rus bad tbe authority to release tbe defendant, even if what was said by him in bis conversation with tbe defendant could have tbe effect in law of discharging tbe defendant of bis obligation as purchaser at tbe sale.

As to the damages, when tbe defendant failed or refused to comply with bis bid and pay tbe amount thereof to tbe trustee, tbe sale being a valid one under tbe deed of trust, tbe latter could have sued tbe defendant for tbe full amount of tbe bid and recovered tbe same with costs. He elected, though, to resell tbe property for tbe benefit of tbe defendant, and it is not disputed tbat tbe sale was properly made in accordance with tbe terms of tbe deed of trust, and tbat defendant bad notice of tbe sale. Tbe court charged .the jury upon tbe issue as to damages, tbat they might allow tbe plaintiff tbe difference between tbe amount bid at tbe first sale and tbe market value of tbe property, as they might ascertain it to be, considering tbe price it brought at tbe second sale, if tbe jury should find tbat tbe second sale was made fairly and in accordance with tbe requirements of tbe deed of trust. Tbis charge seems to be in accordance with what was said by tbis Court in tbe case of Register Co. v. Hill, 136 N. C., 276. Tbe verdict was for an amount much less than tbe sum which tbe defendant bad bid at tbe first sale, and which could have been recovered by tbe plaintiff, as we have already said, if be bad elected to sue for the same upon tendering tbe property to tbe defendant, if tbe facts and circumstances of tbe case required such a tender..

We have examined tbe record carefully and have concluded tbat the case was fairly and correctly tried in tbe court below, .and tbat consequently there was no error in tbe rulings and judgment of the court.

No error.