{ "id": 8559749, "name": "HUBERT M. HOWELL, t/a HOWELL OIL COMPANY v. HERBERT SMITH, t/a ATLANTIC BLOCK COMPANY", "name_abbreviation": "Howell v. Smith", "decision_date": "1962-11-21", "docket_number": "", "first_page": "150", "last_page": "154", "citations": [ { "type": "official", "cite": "258 N.C. 150" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "119 S.E. 2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "254 N.C. 414", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626552 ], "pin_cites": [ { "page": "420" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0414-01" ] }, { "cite": "50 S.E. 619", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "138 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269045 ], "opinion_index": 0, "case_paths": [ "/nc/138/0191-01" ] }, { "cite": "39 S.E. 2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622145 ], "pin_cites": [ { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0537-01" ] }, { "cite": "117 S.E. 2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626777 ], "pin_cites": [ { "page": "677" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0670-01" ] }, { "cite": "119 S.E. 817", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "186 N.C. 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653802 ], "opinion_index": 0, "case_paths": [ "/nc/186/0428-01" ] }, { "cite": "84 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698560 ], "opinion_index": 0, "case_paths": [ "/nc/84/0674-01" ] } ], "analysis": { "cardinality": 537, "char_count": 10067, "ocr_confidence": 0.524, "pagerank": { "raw": 2.811437345869404e-07, "percentile": 0.837621421171659 }, "sha256": "02c46ccebd318dbf01b75376efe1ba7a58aebc307300ea421ccbfcc6a1b6f5ed", "simhash": "1:9587284bb440f109", "word_count": 1678 }, "last_updated": "2023-07-14T19:21:31.620483+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HUBERT M. HOWELL, t/a HOWELL OIL COMPANY v. HERBERT SMITH, t/a ATLANTIC BLOCK COMPANY." ], "opinions": [ { "text": "Bobbitt, J.\nThe record shows plaintiff offered in evidence \u201ca verified statement of account with seven ledger sheets attached, there appearing at the top of each ledger sheet the name 'Atlantic Block Company\u2019 and the said ledger sheets showing numerous charges and credits and an alleged balance due of $2,054.13.\u201d The verified statement is not set forth in the record. It is noted: The complaint alleges merchandise was sold and delivered from August, 1957, through June, 1960. There was evidence the first sale and delivery was made April 5, 1957.\nEvidence offered by plaintiff tends to show:\nPrior to April 5, 1957, plaintiff, through B. G. Combs, its tank wagon salesman, had sold and delivered petroleum products to Atlantic Building Block Company. Mr. A. J. Marlow was in charge of the business conducted under the name of Atlantic Building Block Company.\nOn April 5,1957, at the place where the business of Atlantic Building Block Company had been conducted, Mr. Marlow introduced Combs to defendant (Herbert Smith) and stated that \u201che (Marlow) was selling out the business to Mr. Smith.\u201d In a conversation with defendant, Combs told Smith he \u201cwould be glad to continue to furnish him with his petroleum products,\u201d and defendant replied that \u201che saw no reason why we couldn\u2019t continue on as we were.\u201d Defendant also stated that \u201che was changing the name of the business from \u2018Atlantic Building Block Company\u2019 to \u2018Atlantic Block Company.\u2019 \u201d\nOn April 5, 1957, Combs delivered 160 gallons of gas to said place of business. The invoice therefor was addressed to \u201cAtlantic Block Co.\u201d The signature of defendant, \u201cHerbert H. Smith,\u201d appears thereon under the printed words, \u201cReceived Goods.\u201d Subsequent to April 5, 1957, Combs made numerous deliveries to said place of business on a \u201ckeep filled\u201d basis. Defendant was present \u201cupon a number of occasions.\u201d Defendant \u201chad men helping him and was telling them what to do.\u201d In the absence of defendant, who resided in Duplin County, \u201cMr. Maready was manager at the plant for Mr. Smith so far as (Combs) knew.\u201d After April 5, 1957, defendant signed some delivery tickets and \u201chis employees signed the rest of them.\u201d Payments on account were made by checks bearing the signature, \u201cHerbert H. Smith\u201d under the printed words \u201cAtlantic Block Co.,\u201d or the signature of Mr. Maready.\nCombs did not ask defendant whether \u201cthe business was incorporated.\u201d Nor did defendant state that \u201che was contracting for petroleum products in any capacity.\u201d\nHerbert H. Howell, manager of Howell Oil Company, testified: \u201cDuring the spring and summer of 1958,1 saw Mr. Smith two or three times. I mentioned to him that the account was getting quite large and was not being cut down. I suggested he give us notes to secure the account, and he said he would think about it. Later he told me he wouldn\u2019t give me the notes because he thought he was planning to sell the business. I asked him if he sold the business would he have enough to pay what he owed us. He said he did not know, and I got real worried and started this.\u201d\nNothing was stated by defendant to Combs or to Howell to the effect Atlantic Block Company was a corporation and that defendant was acting as an officer or agent thereof. Nor does the evidence, except as stated above, disclose any particulars as to dealings as between plaintiff and Atlantic Building Block Company prior to April 5, 1957.\nEvidence favorable to defendant is not pertinent to decision on this appeal and hence is not set forth.\n\u201cA contract, express or implied, executed or executory, results from the concurrence of minds of two or more persons, and its legal consequences are not dependent upon the impressions or understandings of one alone of the parties to it. It is not what either thinks, but what both agree.\u201d Prince v. McRae, 84 N.C. 674; Overall Co. v. Holmes, 186 N.C. 428, 119 S.E. 817, and cases cited; Jackson v. Bobbitt, 253 N.C. 670, 677, 117 S.E. 2d 806.\n\u201cThe apparent mutual assent of the parties, essential to the formation of a contract, must be gathered from the language employed by them. The undisclosed intention is immaterial in the absence of mistake, fraud, and the like, and the law imputes to a person an intention corresponding to the reasonable meaning of his words and acts. It judges of his intention by his outward expressions and excludes all questions in regard to his unexpressed intention. If his words or acts, judged by a reasonable standard, manifest an intention to agree in regard to the matter in question, that agreement is established, and it is immaterial what may be the real but unexpressed state of his mind on the subject, as mental assent to the promises in a contract is not essential.\u201d 17 C.J.S., Contracts \u00a7 32. \u201cThe question whether a contract has been made must be determined from a consideration of the expressed intention of the parties \u2014 -that is, from a consideration of their words and acts.\u201d 12 Am. Jur., Contracts \u00a7 19. \u201c. . . the test of the true interpretation of an offer or acceptance is not what the party making it thought it meant or intended it to mean, but what a reasonable person in the position of the parties would have thought it meant.\u201d Williston on Contracts, Third Edition, Yol. 1, \u00a7 94.\nIn the light of these legal principles, we are of opinion, and so decide, that the evidence, when considered in the light most favorable to plaintiff, was sufficient to require submission for jury determination the issue as to whether petroleum products referred to in the complaint were sold and delivered by plaintiff to defendant pursuant to an express contract entered into between plaintiff and defendant on April 5, 1957.\nWith reference to the personal liability of a person who contracts as agent for an undisclosed principal, see Walston v. Whitley & Co., 226 N.C. 537, 540, 39 S.E. 2d 375, and cases cited; Rounsaville v. Insurance Co., 138 N.C. 191, 50 S.E. 619; 3 Am. Jur. 2d, Agency \u00a7\u00a7 307-309; 3 C.J.S., Agency \u00a7 216.\nIt is noted that plaintiff\u2019s recovery, if any, must be on the cause of action alleged in the complaint. \u201cA reply is a defensive pleading.\u201d Nix v. English, 254 N.C. 414, 420, 119 S.E. 2d 220, and cases cited.\nWhile unnecessary to present decision, it seems appropriate that we consider the assignments of error directed to the court\u2019s exclusion of proffered testimony of Combs and of (Herbert H.) Howell to the effect that each intended to do business with Herbert H. Smith, individually, as owner of Atlantic Block Company. This evidence was properly excluded. As indicated above, the subjective (unexpressed) intention of either party to the alleged contract is immaterial. Cases cited by plaintiff, where the intention of a person is a material fact to be proved in the determination of issues raised by the pleadings have no bearing upon the present factual situation.\nThe judgment of involuntary nonsuit is reversed.\nReversed.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Sasser & Duke and Joseph H. Davis for plaintiff appellant.", "James N. Smith for defendant appellee." ], "corrections": "", "head_matter": "HUBERT M. HOWELL, t/a HOWELL OIL COMPANY v. HERBERT SMITH, t/a ATLANTIC BLOCK COMPANY.\n(Filed 21 November 1962.)\n1. Contracts \u00a7 13\u2014\nA contract between parties is their mutual agreement as ascertained by the reasonable meaning of their words and acts; and the undisclosed intent on the part of one of them alone is immaterial in the absence of mistake, fraud, and the like.\n3. Contracts \u00a7 14; Corporations \u00a7 13\u2014 Evidence held for jury on question whether individual defendant contracted for purchase of goods.\nThe evidence disclosed that plaintiff had been selling his products to a customer, that the person in charge of the customer\u2019s business advised plaintiff\u2019s agent that he was selling the business and introduced the agent to defendant as the person purchasing the business, that defendant stated he was changing the name of the business, but that he saw no reason why the purchase of plaintiff\u2019s products should not continue, and on the same day plaintiff\u2019s agent delivered products with invoice addressed to the new name of the business and that defendant signed same under the printed words \u201creceived goods,\u201d and that neither at that time nor in later negotiations in regard to the size of the unpaid balance did defendant disclose that he intended purchasing the products as agent of the corporate purchaser of the business. Held: In an action against defendant individually the evidence is sufficient to be submitted to the jury on the issue of whether the products were sold and delivered by plaintiff pursuant to an express contract between plaintiff and defendant.\n3. Pleadings \u00a7\u00a7 10, 28\u2014\n\u25a0Plaintiff\u2019s recovery must be based on the cause of action alleged in the complaint unaffected by allegations of 'the reply, since a reply is solely a defensive pleading.\n4. Contracts \u00a7 26; Evidence \u00a7 27\u2014\nThe mutual agreement of the parties is the contract and the unexpressed intention of either in entering into the agreement is immaterial, and therefore evidence of the unexpressed intent of one party alone is properly excluded.\nAppeal by plaintiff from Bundy, J., January 29, 1962, Term of WayNE.\nPlaintiff\u2019s action is to recover from Herbert Smith, individually, the sum of $2,054.13 (with interest), alleged to be the balance defendant owes plaintiff for various petroleum products sold and delivered by plaintiff to defendant \u201cunder an express contract.\u201d\nAnswering, defendant denied plaintiff\u2019s said allegations. For a further defense, defendant alleged that Atlantic Block Company was a corporation and plaintiff had knowledge of this fact; that defendant was an officer of the corporation but assumed no personal liability for its debts; and that plaintiff\u2019s sole remedy was against the corporation.\nIn addition to complaint and answer, plaintiff filed (1) a reply and (2) an amended reply, and defendant filed an answer to plaintiff\u2019s amended reply. .\nEvidence was offered by both plaintiff and defendant. At the close of all the evidence, the court, allowing defendant\u2019s motion therefor, entered judgment of involuntary nonsuit. Plaintiff excepted and appealed.\nSasser & Duke and Joseph H. Davis for plaintiff appellant.\nJames N. Smith for defendant appellee." }, "file_name": "0150-01", "first_page_order": 190, "last_page_order": 194 }