#### J. K. BARROW v. NICODEMUS BARROW and THE FARMVILLE-WOODWARD LUMBER COMPANY, a Corporation.

(Filed 24 September, 1941.)

Estoppel § 6a: Principal and Agent § 12 — In order to constitute equitable estoppel, person sought to be charged must have had knowledge of facts.

This action was instituted to recover damages for trespass for the cutting and removal of timber. Defendant claimed he bought the timber from plaintiff’s son and that plaintiff was estopped to deny the authority of the son to sell same. Defendant’s evidence on the issue of estoppel tending to show that plaintiff left his family and did not return to the community except for one or two short visits, that his oldest son took over and looked after the place, and for a number of years cut wood from the locus in quo and sold same. The evidence further tended to show that plaintiff had no knowledge that his son was cutting and selling wood or timber, and there was no evidence that plaintiff expressly authorized his son 'to cut and sell wood or timber. Hold: The evidence is insufficient to bring the case within the doctrine of equitable estoppel or the doctrine that a person who, by words or conduct, represents or permits it to be represented that another is his agent, will be estopped to deny the fact of agency as against third persons acting in reliance on the misrepresentations.

Appeal by defendant, The Farmville-'Woodward Lumber Company, a corporation, from Johnston, Special Judge, at April Special Term, 1941, of MARTIN.

*71Civil action to recover damage for trespass.

Plaintiff among other things alleges in his complaint: That defendants have trespassed upon a tract of land in Martin County, North Carolina, owned by him, and have cut and removed therefrom 90,000 feet of timber and committed other wrongful acts thereon to his damage in the sum of $1,000, for which amount judgment is prayed.

Defendant Nicodemus Barrow has not answered.

Defendant, Farmville-Woodward Lumber Company, a corporation, in answer filed, denies the material allegations in the complaint, and avers: (1) That it bought from Nicodemus Barrow some timber which had been cut from said land and sawed into logs and had paid him for said logs. (2) That for some time prior thereto Nicodemus Barrow had been managing and looking after said land, had sold wood therefrom, and had acted with respect thereto as general agent of his father, the plaintiff. (3) That plaintiff, “because and on account of his conduct in allowing said Nicodemus Barrow to act as his agent and to act with respect to said land as his general agent, is estopped to deny that said Nicodemus Barrow was his agent with respect to said property in question, and is therefore not entitled to recover anything out of the defendant, Farmville-Woodward Lumber Company, in'this action.”

Upon the pleading these issues were framed:

“1. Is the plaintiff, by his conduct, estopped to deny that Nicodemus Barrow was his agent with respect to the property in question?

“2. What amount, if any, is the plaintiff entitled to recover of Nicodemus Barrow?”

Upon the trial below the parties entered into this stipulation:

“It is agreed . . . that the defendant Farmville-Woodward Lumber Company, bought from Nicodemus Barrow 53,842 feet of logs, and that stumpage price at said time was $4.50 per thousand feet. It is agreed and stipulated that the lands in controversy belonged to the plaintiff; that it had certain timber on it; that the lumber company cut 53,842 feet of lumber off the land belonging to the plaintiff. The lumber company contends, however, that they bought the lumber from Nicodemus Barrow, who was the agent of the plaintiff in this case. The plaintiff denies that agency. The question presented is the question of whether or not Nicodemus Barrow was the agent of the plaintiff, and further, whether or not plaintiff’s conduct has been such that he is estopped from denying that Nicodemus Barrow was his agent.”

Thereupon defendant Lumber Company voluntarily assumed the burden of the issue and offered evidence tending to show: That about 25 years ago, plaintiff J. Knowledge Barrow and'his family, consisting of his wife and six or seven children, resided in a house on the land in question; that about that time he left his family there and went away; *72that be bas not returned to tbe community except on one or two short visits; that after be departed bis family lived in a shack or bouse on the place until it fell down six or eight years ago; that they tended a garden and potato and corn patches; that Nicodemus was tbe largest boy and looked after tbe place; that off and on ever since be was big-enough Nicodemus, who is now 25 or 30 years old, bas cut a lot of wood off tbe place and pulled it out to tbe road, and sold it to wood yards in Williamston and to others; and that be cut wood off the place every winter until tbe Earmville-Woodward Lumber Company bought tbe timber from him.

Tbe testimony tended to show, however, that plaintiff, Knowledge Barrow, bad no knowledge of tbe fact that bis son Nicodemus Barrow was cutting and selling wood or timber from tbe land. There is no evidence that Knowledge Barrow expressly authorized Nicodemus to sell either wood or timber.

At tbe close of defendant’s testimony plaintiff moved for directed verdict on tbe first issue. Tbe court, ruling that defendant Farmville-Woodward Lumber Company bad failed to produce and offer testimony sufficient to be submitted to tbe jury on tbe question of agency, or estoppel raised by tbe pleadings, allowed tbe motion and entered judgment, from which said corporate defendant appeals to Supreme Court and assigns error.

Hugh G. Horton for plaintiff, appellee.

Peel & Manning for defendant, appellant.

WiNBORNE, J.

Tbe question presented on this appeal is : When taken in tbe light most favorable to plaintiffs, is there sufficient evidence to take tbe case to tbe jury on tbe issue raised by tbe plea of estoppel ?

Tbe court below answered in tbe negative. In this we concur.

In equity there may be an estoppel affecting tbe legal title to land, but of tbe constituent elements there must be conduct or words of tbe party against whom tbe estoppel is pleaded, amounting to a representation, or a concealment of material facts, which at tbe time must be known to him, or at least tbe circumstances must be such that tbe knowledge of them is necessarily imputed to him. Boddie v. Bond, 154 N. C., 359, 70 S. E., 824; Self Help Corp. v. Brinkley, 215 N. C., 615, 2 S. E. (2d), 889; 19 Am. Jur., 743, Estoppel, sec. 87.

Further, there is a general principle that “Where a person, by words or conduct, represents or permits it to be represented that another is bis agent, be will be estopped to deny tbe agency as against third persons, who have dealt, on tbe faith of such representation, with tbe person so held out as agent, even if no agency exists in fact.” See Wynn v. Grant, *73 166 N. C., 39, 81 S. E., 949, quotation from Story on Agency. Also, Ferguson v. Amusement Co., 171 N. C., 663, 89 S. E., 45.

In the present case there is no evidence to bring the case within either of these principles. The cases of Metzger v. Whitehurst, 147 N. C., 171, 60 S. E., 907; Williams v. R. R., 155 N. C., 260, 71 S. E., 346; and McArthur v. Byrd, 213 N. C., 321, 195 S. E., 777, relied upon by appellant, are distinguishable in factual situations.

The judgment below is

Affirmed.