Simmons v. Morton

161 S.E.2d 222 (1968)

1 N.C. App. 308

Charles B. SIMMONS, Sr. and wife, Sylvia W. Simmons v. Hugh MORTON, Agnes M. Morton and Agnes M. Cocke.

No. 68SC46.

Court of Appeals of North Carolina.

May 22, 1968.

*223 Aaron Goldberg and James L. Nelson, Wilmington, for plaintiffs appellants.

Hogue, Hill & Rowe, by William L. Hill, II, Wilmington, for defendants appellees.

BRITT, Judge.

Although plaintiffs made thirteen assignments or error, their crucial assignment is that the trial court committed error in allowing defendants' motion for judgment as in case of nonsuit. We hold that the trial court properly allowed defendants' motion.

Defendants contend that plaintiffs failed to show agency between Mrs. Lucy B. Johnson and the defendants, particularly the feme defendants; they also contend that plaintiffs' attempt to impose a negative easement by oral agreement is in violation of the statute of frauds and is not enforceable.

Plaintiffs attempted to allege two causes of action which are substantially the same, in that they allege an oral agreement or promise by the secretary of the defendant Hugh Morton to place a negative easement on property owned by the feme defendants, and seek to enjoin all defendants from erecting an apartment house or shopping center on the sixty acres of land in question.

Plaintiffs failed to carry the burden of proof on the issue of agency. They failed to show that defendant Hugh Morton was the agent of the feme defendants; consequently, the acts of an employee of defendant Hugh Morton could not be imputed to the feme defendants.

"The plaintiff has the burden of proving that a particular person was at the time acting as a servant or agent of the defendant. An agent's authority to bind his principal cannot be shown by the agent's acts or declarations. This can be shown only by proof that the principal authorized the acts to be done or that, after they were done, he ratified them." Lee, N.C. Law of Agency and Partnership, § 20. One who seeks to enforce against an alleged principal a contract made by an alleged agent has the burden of proving the existence of the agency and the authority of the agent to bind the principal by such contract. Godwin Supply Co. v. Hight, 268 N.C. 572, 151 S.E.2d 50; O'Donnell v. Carr, 189 N.C. 77, 126 S.E. 112. A family *224 relationship creates no presumption of agency between members of the family. Godwin Supply Co. v. Hight, supra.

"One who deals with an agent must, to protect himself, ascertain the extent of the agent's authority." Rodman, J., speaking for our Supreme Court in Nationwide Homes of Raleigh, N. C., Inc. v. First-Citizens Bank & Trust Co., 262 N.C. 79, 136 S.E.2d 202.

"The burden of establishing the relation of principal and agent between defendant and said real estate agent is upon plaintiff. The relation can arise only from a contract between the parties, express or implied. * * * The law will not imply such a contract, unless the same is clearly established by the facts." O'Donnell v. Carr, supra.

Defendants' motion for judgment as of nonsuit was proper also for that the alleged representations or restrictions were in violation of the statute of frauds.

Many of the legal questions involved here were thoroughly discussed by Varser, J., speaking for our Supreme Court in Davis v. Robinson, 189 N.C. 589, 127 S.E. 697. The following excerpts from the opinion are pertinent: "Plaintiffs' prayer for injunctive relief presupposes an easement in favor of their lots and a servitude in the defendants' lots. * * * An easement is an incorporeal hereditament, and is an interest in the servient estate. * * * Negative easements are those where the owner of a servient estate is prohibited from doing something otherwise lawful upon his estate, because it will affect the dominant estate. * * * An easement, being a hereditament, is expressly included within this statute (the statute of frauds). * * * Negative easements are within the statute of frauds and cannot be proved by parol." Since its rendition, this decision has been cited many times. See Hege v. Sellers, 241 N.C. 240, 84 S.E.2d 892.

The pertinent portion of our statute of frauds, G.S. § 22-2, provides as follows: "All contracts to sell or convey any lands, tenements or hereditaments, or any interest in or concerning them, * * * shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized." (Emphasis ours.)

Plaintiffs' contentions regarding the representations and promises of Mrs. Johnson would tend to establish a negative easement, which, under the decisions of our Supreme Court, clearly comes within the statute of frauds.

In Weant v. McCanless, 235 N.C. 384, 70 S.E.2d 196, Denny, J. (later C. J.), speaking for the court, sets forth the three ways in which the statute of frauds may be taken advantage of. The second method is as follows: "The contract, as alleged, may be denied and the statute pleaded, and in such case if it `develops on the trial that the contract is in parol, it must be declared invalid.'"

The evidence in the case at bar showed that the alleged contract was in parol; therefore, the Superior Court properly declared it invalid.

In view of the foregoing, we do not deem it necessary to consider the other assignments of error made by plaintiffs.

The judgment of the Superior Court is

Affirmed.

MALLARD, C. J., and MORRIS, J., concur.