#### D. W. McARTHUR v. JAMES C. BYRD and SAMUEL M. BYRD, Partners, Trading and Doing Business Under the Name of J. C. BYRD AND BROTHER.

(Filed 23 March, 1938.)

1'. Frauds, Statute of, § 9 — Statute does not apply to executed contracts under which standing timber has been cut and converted into personalty.

When defendants alleged that they purchased timber which had been cut and removed from the land, the fact that the contract under which *322their seller cut and removed the timber was not in writing is immaterial, since the statute applies to executory contracts and not to executed contracts under which timber has been converted to personalty.

2. Principal and Agent § 8—

Defendants’ evidence that the person selling standing timber on plaintiff’s land was plaintiff’s general agent in the supervision of the farm with power to sell crossties, timber and crops therefrom held sufficient to be submitted to the jury.

3. Appeal and Error § 39b—

The failure of the jury to answer the issue of indebtedness does not entitle plaintiff to a new trial when the evidence is sufficient to justify an instruction that the issue be answered “Nothing,” the verdict, though incomplete, not being prejudicial in such instance.

Appeal by plaintiff from Hamilton, Special Judge, at October Term, 1937, of HabNett. No error.

This is a civil action instituted by tbe plaintiff to recover damages for tbe alleged wrongful conversion by tbe defendant of certain timber cut and removed from premises owned by tbe plaintiff.

Tbe plaintiff resides in Florida and bis brother, Adam McArthur, bas for years bad plaintiff’s farm in Cumberland County and bis farm in Harnett County in bis charge and under bis general supervision. Tbe plaintiff comes to North Carolina each year to see about these farms. Adam McArthur sold certain timber on tbe Harnett County farm to one Marvin Hobbs, who in turn, as be cut it, sold tbe timber to tbe defendants. These transactions extended over a period of about four years. Tbe timber, when delivered to tbe defendants, bad been cut into saw stock lengths. Tbe defendant paid Adam McArthur tbe amount charged for tbe stumpage. Issues were submitted to and answered by tbe jury as follows :

“1. Is tbe plaintiff, D. W. McArthur, and was be at tbe time complained of in tbe complaint, tbe owner in fee of tbe lands described in tbe complaint? Answer: ‘Yes’ (by consent).

“2. Is tbe plaintiff by bis conduct estopped to deny that Adam McArthur was bis agent with respect to tbe property in question? Answer : ‘Yes.’

“3. Did tbe defendants, J. C. Byrd and Brother, wrongfully receive, take possession of and wrongfully appropriate to their own use valuable pine timber in saw stock lengths, tbe property of tbe plaintiff, and dispose of tbe same and convert tbe proceeds therefrom to their own use, as alleged in tbe complaint ? Answer: .

“4. Is tbe plaintiff’s action as a whole barred by tbe three-year statute of limitations ? Answer:.

“5. If tbe entire action is not barred, is any portion thereof barred; if so, what part ? Answer: .

*323“6. What amount, if any, is plaintiff entitled to recover of defendants? Answer: .”

Upon the coming in of the verdict the court below signed judgment that the plaintiff have and recover nothing of the defendants, etc. The plaintiff excepted and appealed.

J. B. Young and Bullard & Bullard for plaintiff, appellant.

Boss ■& Boss and Neill McE. Salmon for defendants, appellees.

Per Curiam:.

This cause does not involve an executory contract. The defendants do not claim the right to any timber standing and growing upon the premises of the plaintiff. It follows that the fact that the sale to the defendants was not in writing is immaterial. At the time the defendants received the timber in controversy it had been converted into personal property.

There is ample evidence in the record to sustain the answer of the jury to the second issue and which tends to show that Adam McArthur was in fact the general agent of the plaintiff in the supervision of said farm, the sale of crossties, timber and crops therefrom. So that, under the verdict of the jury the plaintiff is bound by the acts of his agent in collecting from the defendants the agreed market price of the timber received by them.

It would seem that the verdict of the jury is incomplete. There is no finding that the defendants are, or are not, indebted to the plaintiff for timber the defendants received from the plaintiff through his agent Adam McArthur or Marvin Hobbs, who was cutting the timber under contract with Adam McArthur. In view of the record herein, however, the failure of the court below to have the jury to answer the sixth issue is harmless error. The plaintiff offered evidence, which is uncontra-dicted, that the defendants paid Adam McArthur the prevailing market price for the timber received by them. This being true, the court below would have been fully warranted in charging the jury to answer the sixth issue “Nothing.” His failure to do so cannot be held for reversible error.

We have examined the other exceptive assignments of error contained in the record and find in none of them sufficient cause to disturb the judgment below.

No error.