{ "id": 8572714, "name": "MORPUL RESEARCH CORPORATION v. WESTOVER HARDWARE, INC.", "name_abbreviation": "Morpul Research Corp. v. Westover Hardware, Inc.", "decision_date": "1965-02-24", "docket_number": "", "first_page": "718", "last_page": "723", "citations": [ { "type": "official", "cite": "263 N.C. 718" } ], "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": "139 S.E. 2d 202", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "263 N.C. 212", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568827 ], "opinion_index": 0, "case_paths": [ "/nc/263/0212-01" ] }, { "cite": "120 S.E. 2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "255 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567853 ], "opinion_index": 0, "case_paths": [ "/nc/255/0172-01" ] }, { "cite": "69 S.E. 2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "235 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622722 ], "pin_cites": [ { "page": "242" } ], "opinion_index": 0, "case_paths": [ "/nc/235/0237-01" ] }, { "cite": "340 S.W. 2d 220", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10154193, 10154135 ], "opinion_index": 0, "case_paths": [ "/sw2d/340/0220-02", "/sw2d/340/0220-01" ] }, { "cite": "1 S.E. 2d 135", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "214 N.C. 794", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8633037 ], "pin_cites": [ { "page": "797" } ], "opinion_index": 0, "case_paths": [ "/nc/214/0794-01" ] }, { "cite": "93 S.E. 984", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "174 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11254273 ], "pin_cites": [ { "page": "439-440" } ], "opinion_index": 0, "case_paths": [ "/nc/174/0435-01" ] }, { "cite": "81 S.E. 949", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "166 N.C. 39", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11268564 ], "pin_cites": [ { "page": "47" } ], "opinion_index": 0, "case_paths": [ "/nc/166/0039-01" ] }, { "cite": "84 S.E. 1032", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "168 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662047 ], "pin_cites": [ { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/nc/168/0632-01" ] }, { "cite": "27 S.E. 2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611581 ], "pin_cites": [ { "page": "474" } ], "opinion_index": 0, "case_paths": [ "/nc/223/0470-01" ] }, { "cite": "130 S.E. 32", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "190 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605156 ], "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/nc/190/0406-01" ] } ], "analysis": { "cardinality": 680, "char_count": 14670, "ocr_confidence": 0.587, "pagerank": { "raw": 3.640626801837583e-07, "percentile": 0.889585840718899 }, "sha256": "aa694d0bf9be6c0fb2698fb9d2a3ae2e9ccc7383d6c1c6c31266fe211d237ad6", "simhash": "1:922d8bbd37b2bdc9", "word_count": 2438 }, "last_updated": "2023-07-14T15:44:48.035422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MORPUL RESEARCH CORPORATION v. WESTOVER HARDWARE, INC." ], "opinions": [ { "text": "Bobbitt, J.\nPlaintiff's evidence tends to show the alleged contract of sale was entered into by Ernest W. Azer, then employed by plaintiff as \u201ca special representative,\u201d and Robert Bartel, then employed by defendant as manager of defendant\u2019s Westover Shopping Center store in Charlotte, N. C., or of its appliance department.\nDefendant\u2019s evidence tends to show Bartel was sales manager of the appliance department of said store; that Bartel had no authority to act for defendant in the purchase of merchandise; that all purchases by defendant were made on (serially numbered) purchase order forms; that no purchase was authorized unless and until a' purchase order therefor was approved and signed by Jerry Melton, the president, also the \u201cowner and manager,\u201d of defendant; and that no purchase order was issued for said steam cabinets.\nAzer testified that, while his negotiations were with Bartel, he was introduced to Jerry Melton and knew he \u201cwas the owner.\u201d Evidence for defendant includes the following: Azer brought the ten cabinets to defendant\u2019s store. One was unpacked and hooked up for demonstration. Azer was introduced to Melton as owner. Melton testified: \u201cI told Mr. Azer in no uncertain terms, I said, \u2018I do not want anything to do with these steam cabinets except on a consignment basis \u2014 if they sell, okay \u2014 if they don\u2019t sell, you come down here, load them up in your station wagon and like you brought them down here, and take them back with you.\u2019 \u201d Defendant offered evidence in corroboration of said testimony. Azer testified no such statement was made to him by Melton.\nOther evidence tends to show: The efforts of defendant\u2019s salesmen to sell the cabinets were unsuccessful. Plaintiff demanded payment. Defendant insisted the cabinets were received on consignment. In June 1963, defendant returned to plaintiff \u201ceight chairs, and five steam generators.\u201d \u201cOne chair and the five (?) steam generators\u201d (\u201cthe delivery boy apparently overlooked them\u201d) are still \u201cover in the back\u201d of defendant\u2019s said store. One unit was given by Melton to a friend. Defendant\u2019s check in the amount of $149.75 was issued to and cashed by plaintiff as payment for this unit.\nThe foregoing indicates the gist of the evidence tending to support the respective contentions of plaintiff and defendant. Further discussion of the evidence is unnecessary to decision.\nWe consider first defendant\u2019s assignments of error addressed to the denial of its motion for judgment of nonsuit.\nThere was plenary evidence that Bartel, acting for defendant, ordered the ten cabinets upon the terms alleged; that Bartel was mcav-ager of defendant\u2019s Westover Shopping Center store (defendant had one or more other stores) or of the appliance department of said store; and that, pursuant to Bartel\u2019s order, the cabinets were delivered to and placed in defendant\u2019s said store and demonstrated and offered for sale by defendant\u2019s salesmen.\nIn Kelly v. Shoe Co., 190 N.C. 406, 409, 130 S.E. 32, the opinion of Varser, J., states: \u201cThe term \u2018manager,\u2019 applied to an officer or representative of a corporation, implies the idea that the management of the affairs of the company has been committed to him with respect to the property and business under his charge. Consequently, his acts in and about the corporation\u2019s business, so committed to him, is within the scope of his authority. (Citations.) The designation \u2018manager\u2019 implies general power, . . . (Citations.) The term \u2018manager\u2019 implies the exercise of judgment and skill. (Citations.) The term \u2018general manager\u2019 may imply still greater authority, . . . (Citations.)\u201d See also Gillis v. Tea Co., 223 N.C. 470, 474, 27 S.E. 2d 283.\nAn oft-quoted excerpt from the opinion of Hoke, J. (later C.J.), in Powell v. Lumber Co., 168 N.C. 632, 635, 84 S.E. 1032, states the pertinent rule as follows:\n\u201cA general agent is said to be one who is authorized to act for his principal in all matters concerning a particular business or employment of a particular nature. Tiffany on Agency, p. 191. And it is the recognized rule that such an agent may usually bind his principal as to all acts within the scope of his agency, including not only the authority actually conferred, but such as is usually \u2018confided to an agent employed to transact the business which is given him to do,\u2019 and it is held that, as to third persons, this real and apparent authority is one and the same, and may not be restricted by special or private instructions of the principal unless the limitations sought to be placed upon it are known to such persons or the act or power in question is of such an unusual character as to put a man of reasonable business prudence upon inquiry as to the existence of the particular authority claimed. (Citations.)\n\u201cThe power of an agent, then, to bind his principal may include not only the authority actually conferred, but the authority implied as usual and necessary to the proper performance of the work intrusted to him, and it may be further extended by reason of acts indicating authority which the principal has approved or knowingly or, at times, even negligently permitted the agent to do in the course of his employment. (Citations.) \u201d\nOur decisions adopt and quote the following statement from Tiffany on Agency, pp. 180-181, viz.: \u201cThe principal is liable upon a contract duly made by his agent with a third person \u2014 (1) When the agent acts within the scope of his actual authority; (2) When the contract, although unauthorized, has been ratified; (3) When the agent acts within the scope of his apparent authority, unless the third person has notice that the agent is exceeding his actual authority. \u2018Apparent authority,\u2019 as the term is used in the foregoing section, includes authority to do whatever is usual and necessary to carry into effect the principal power conferred upon the agent and to transact the business which he is employed to transact; and the principal cannot restrict his liability for acts of his agent within the scope of his apparent authority by limitations thereon of which the person dealing with the agent has not notice. The principal may be estopped to deny that a person is his agent, or that his agent has acted within the scope of his authority.\u201d Wynn v. Grant, 166 N.C. 39, 47, 81 S.E. 949; Brimmer v. Brimmer, 174 N.C. 435, 439-440, 93 S.E. 984; Jones v. Bank, 214 N.C. 794, 797, 1 S.E. 2d 135.\nHere, the evidence favorable to plaintiff tends to show that Jerry Melton had knowledge: (1) that, pursuant to negotiations between Bartel and Azer, the cabinets had been delivered to defendant; (2) that defendant received an invoice for said cabinets setting forth the terms of sale alleged in the complaint; and (3) that thereafter defendant\u2019s salesmen demonstrated and endeavored to sell the cabinets. Moreover, the evidence favorable to plaintiff tends to show plaintiff had no knowledge or notice of limitations, if any, upon Bartel\u2019s authority to act for defendant in purchasing the cabinets. In this connection, it is noteworthy that the alleged contract was for articles in the nature of appliances and not excessive in respect of quantity or cost. See R. H. Kyle Furniture Co. v. Russell Dry Goods Co. (Ky.), 340 S.W. 2d 220.\nThe conclusion reached is that the evidence, when considered in the light most favorable to plaintiff, was sufficient to support a finding that Bartel, acting for defendant, ordered the cabinets on the terms alleged, and that in so doing he was acting within the apparent scope of his authority. It is noted: The complaint does not allege ratification or facts on which such plea could be based. Hence, our consideration of the motion for nonsuit has been restricted to whether the evidence was sufficient to support a finding that Bartel acted within the apparent scope of his authority.\nDefendant\u2019s motion for judgment of involuntary nonsuit was properly overruled.\nDefendant excepted to each of the following three consecutive paragraphs of the court\u2019s charge, viz:\n\u201cNow, where the act of the agent, although it is beyond the actual scope of his authority, is within the apparent scope, and the person dealing with the agent acts in good faith and with reasonable prudence, the principal is bound. The apparent authority, so far as the third person is concerned, is the real authority, and when a third person has ascertained the apparent authority with which the principal was clothed as agent, he is under no further obligation to inquire into the agent\u2019s actual authority.\n\u201cHowever, the authority must have been actually apparent to the third person, that is, Mr. Azer, who, in order to avail himself of the rights thereunder, must have dealt with the agent, that is, Mr. Bartel, in reliance thereon, in good faith, and in the exercise of reasonable prudence. In which case, the principal, that is, Mr. Melton, or the West-over Hardware, Inc., will be bound by the action of the agent performed in the usual and customary mode of doing business.\n\u201cAlthough Mr. Bartel may have acted in violation of private instructions given to him by Mr. Melton, an agent cannot enlarge the actual authority by his own action, so the question for you to determine by all the facts and circumstances there present, so as to lead Mr. Azer to believe that Mr. Melton had the apparent authority to give this purchase order \u2014 that is a question under the law for you to determine.\u201d\nObviously, the second reference to \u201cMr. Melton\u201d in the third quoted paragraph is an error in a transcript or \u201ca mere lapsus linguae.\u201d It has no relation to the ground of decision.\nAbsent the testimony as to what transpired between Azer and Melton, the instructions given are in substantial accord with our decisions. However, we find nothing in these instructions or elsewhere in the charge that deals directly with a major, if not the crucial factual question, namely, whether Melton told Azer he could leave the cabinets with defendant only on a consignment basis.\nAzer was the only person purporting to act for plaintiff in contacts with Bartel and Melton. There was evidence (1) that Azer knew Melton was Bartel\u2019s superior, and (2) that Melton notified Azer he could not leave the cabinets with defendant except on a consignment basis. If the jury should so find, such statement by Melton to Azer would negative whatever apparent authority Bartel may have otherwise possessed. \u201cAny apparent authority that might otherwise exist vanishes in the presence of the third person\u2019s knowledge, actual or constructive, of what the agent is, and what he is not, empowered to do for his principal.\u201d 2 C.J.S., Agency \u00a7 92, p. 1189; Commercial Solvents v. Johnson, 235 N.C. 237, 242, 69 S.E. 2d 716; 3 Am. Jur. 2d, Agency, \u00a7 77. On account of said evidence, defendant was entitled, even in the absence of a request therefor, to an instruction on this substantial feature of the case. Westmoreland v. Gregory, 255 N.C. 172, 120 S.E. 2d 523; Correll v. Gaskins, 263 N.C. 212, 139 S.E. 2d 202. The failure to so charge was prejudicial error for which a new trial must be awarded.\nOther assignments of error present questions that may not arise at the next trial.\nNew trial.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Smith, Moore, Smith, Schell & Hunter and Jack W. Floyd for 'plaintiff appellee.", "Jordan, Wright, Henson ,& Nichols and Karl N. Hill, Jr., for defendant appellant." ], "corrections": "", "head_matter": "MORPUL RESEARCH CORPORATION v. WESTOVER HARDWARE, INC.\n(Filed 24 February, 1965.)\n1. Corporations \u00a7 8\u2014\nThe position of manager of a corporation implies that the person holding that corporate office is in charge of the affairs of the company with respect to the property and business with which he is associated, with the power to do those things necessary for the discharge of such duties.\n2. Same; Principal ancl Agent \u00a7-5\u2014\nThe principal is bound by those acts of the agent which are within the authority actually conferred upon him and those acts within his apparent authority, and an agent has the apparent authority to do 'the usual things necessary to the transaction of the business which the agent is employed to do.\n3. Same\u2014\nEvidence tending to show that plaintiff delivered certain appliances to defendant\u2019s store upon order of the manager of the store and that the store received the appliances, demonstrated and offered them for retail sale, is held sufficient to overrule nonsuit upon the question of the manager\u2019s apparent authority to order the appliances for his principal.\n4. Same\u2014\nThe doctrine of apparent authority cannot obtain when the superior of the alleged agent has affirmatively denied the agent\u2019s authority in the premises to the knowledge of the person dealing with the agent.\n5. Same\u2014\nWhere plaintiff\u2019s evidence is sufficient for the jury on the question of the apparent authority of defendant\u2019s agent to order the appliances in question, but defendant introduces evidence that the agent\u2019s superior told plaintiff\u2019s salesman that the appliances might be delivered only upon consignment, it is error for the court to fail to instruct the jury that on defendant\u2019s evidence the agent had no authority to purchase the goods.\n6. Trial \u00a7 33\u2014\nIt is error for the court to fail to instruct the jury upon a substantial feature of the case presented by the evidence, even in the absence of a request.\nAppeal by defendant from Shaw, J., February 17, 1964, Civil Session of Guileobd, Greensboro Division, docketed and argued as No. 594 at Fall Term 1964.\nPlaintiff instituted this action August 20, 1963, in the Greensboro Municipal-County Court to recover for ten portable steam cabinets delivered by plaintiff, a corporation, to defendant, a corporation, on or about January 26, 1963.\nPlaintiff alleged that defendant \u201cthrough its authorized agent, accepted and agreed to pay for the said steam cabinets the total sum of $1,499.50 within a period of thirty (30) days, a cash discount of 2% being allowed for payment within ten (10) days.\u201d Defendant, denying there was a sale, alleged that, pursuant to agreement, said cabinets were delivered and received solely on a consignment basis.\nA trial, without a jury, in said municipal-county court resulted in a judgment that plaintiff \u201chave and recover nothing of the defendant,\u201d from which plaintiff appealed to the superior court.\nUpon trial de novo in the superior court, the court submitted, and the jury answered; the following issues: \u201c1. Did the plaintiff and; defendant enter into a contract for the purchase of steam cabinets as alleged in the complaint? Answer: Yes. 2. If so, what amount, if any, is the plaintiff entitled to recover from the defendant by reason thereof? Answer: $1,349.75.\u201d\nJudgment for plaintiff, in accordance with said verdict, was entered. Defendant excepted and appealed.\nSmith, Moore, Smith, Schell & Hunter and Jack W. Floyd for 'plaintiff appellee.\nJordan, Wright, Henson ,& Nichols and Karl N. Hill, Jr., for defendant appellant." }, "file_name": "0718-01", "first_page_order": 756, "last_page_order": 761 }