Page images


lished. And in State v. Vinson, 68 N. C., 335, the same learned justice says: "It is easy enough to express in general terms a rule of law . . . . but it is confessedly difficult to draw the line between evidence which is very slight and that which, as having no bearing on the fact to be proved, is, in relation to that fact, no evidence at all. We may say with certainty, that evidence which merely shows it possible for the fact in issue to be as alleged, or which raises a mere conjecture that it was so, is an insufficient foundation for a verdict and should not be left to the jury."

Battle, J., in discussing and applying this principle in Sutton v. Maddrey, 47 N. C., 320, gives this illustration: "Suppose a plaintiff in a case was bound to show the existence of a fact within twenty years and the only testimony he offered was that of a witness who stated that it existed either nineteen or twenty-one years, and he could not remember which. Could the judge leave that isolated statement to the jury as testimony from which they were at liberty to find the issue in favor of the plaintiff? Certainly not."

Faircloth, C. J., in Young v. Railroad, 116 N. C., 932, says: "Judges are no longer required to submit a case to the jury merely because some evidence has been introduced by the parties having the burden of proof, unless the evidence be of such a character as that it would warrant the jury to proceed in finding a verdict in favor of the party introducing such evidence."

In State v. Satterfield, 121 N. C., 558, the same judge says: "The duty of drawing the line between a scintilla and evidence fit for the jury is sometimes difficult and delicate, but it is important, and the court must assume the responsibility. It is a preliminary question for the court who must find not that there is absolutely no evidence, but that the evidence is such as would justify a jury in proceeding to a verdict, such as will reasonably satisfy an impartial mind."


See also Spruill v. Ins. Co., 120 N. C., 141; Bank v. School, &c., 121 N. C., 107.

Merrimon, J., in State v. Powell, 94 N. C., 968, says: "Legal evidence is not such as merely raises a suspicion, and leaves the matter in question to conjecture-as said above,, it is such as in some just and reasonable view of it—taking all the facts, whether they be many or few, as will warrant a verdict of guilty," citing Cobb v. Fogalman, 23 N. C., 440, and other authorities.

The difference between the province of the jury to pass upon the weight of the testimony when there is conflict, and to draw legal conclusions from testimony in respect to which there is no conflict, must be kept in mind. The question in this case is simply whether there is, admitting every word of the testimony to be true, any evidence upon which, as a matter of law, the jury could, under the instruction of the court, draw the conclusion that the plaintiff had shown an express contract to perform the services for and on behalf of the defendant corporation. There is no question in this case in regard to the weight of the testimony.

Applying this principle to the testimony in this case, we think that it was not sufficient to be submitted to the jury. A natural person becomes liable contractually when a proposition is made upon one side and accepted upon the other, or when a request is made for the performance of service and pursuant thereto the service is rendered. We are not now discussing the question of consideration, as no such question is presented in this case; nor are we discussing the question of ratification, for the same reason. It is elementary that a contract upon which a civil action may be founded must be the result of the concurrence or coming together of the minds of the contracting parties-a corporation, of course, speaking and acting through its authorized agents. The plaintiff says that his testimony establishes this condition. The "City


of Jacksonville" was stranded upon the coast of North Carolina. For the purpose of this discussion, she was not the property of the defendant company, but was the property of the DeBary Company. The plaintiff resided in Beaufort, N. C., and being a marine underwriter's agent, telegraphed the underwriters and the defendant steamship company at New York. In response thereto he received a telegram from the secretary of the Boston Board of Underwriters, stating the value of the vessel and using the words "Protect. Advise me." He sent persons to Hatteras and says: "I went to New York to see Mr. Clyde. I saw Theodore Eger and Marshall Clyde. They told me to wait until Frank Clyde came in; he is the president of the company." He then had a conversation with Marshall Clyde, who is the president of the DeBary Bay Company. This conversation was in the place of business of the defendant company. Marshall Clyde asked for a report of the ship, which the plaintiff made and had a conversation about it. He asked the plaintiff if he wanted any money. Eger was present; he was the general manager of the defendant company. The next morning the plaintiff again met the two Clydes with Eger and Mather, the latter being Clyde's insurance adjuster and agent. It seems from the testimony that there was a partnership known as "W. T. Clyde & Co." They said, "On what you say, we are going to get this vessel." Marshall Clyde asked him when he was going to leave and the plaintiff said "tonight." He asked him if he wanted any money and the plaintiff answered "no." Eger said, "We want you to go down there and get the ship off; we care nothing for the framework, but we want the hull and machinery." Marshall Clyde told him to go, "spend what is needed, and when the ship is out we will see you handsomely rewarded outside of what the underwriters pay you." This was clearly contractual language. There can be no mistake as to its purport and legal signifi

Vol. 132-58



Marshall Clyde had no connection, so far as the testimony shows, with the defendant company.

The plaintiff further said: "My first orders came from the Boston Board of Underwriters and owners. I forwarded bill to the Boston Board. Eger and Clyde both said that the contract of saving the vessel had been made with the Atlantic Wrecking Company. I have a contract with the Clyde Steamship Company. The writing was to W. P. Clyde & Co. I have written them. I can not say that all letters were so addressed. I did expect to get my pay from the underwriters. I brought suit in Philadelphia. In my complaint I think I said that the underwriters owed me. I signed the paper." In this condition of the testimony we think it impossible, from a legal standpoint, for a jury reasonably to conclude that the plaintiff had shown a contract between the defendant company and himself.

The court instructed the jury that "A general manager would have such authority," that is, authority to make this contract. The only testimony is that of the plaintiff, who says that Eger was the general manager. It is by no means clear that this instruction is correct.

We base our conclusion, however, upon the proposition that the testimony, measured by the rules laid down by this court, is not sufficient to be submitted to the jury to sustain the plaintiff's contention. In the opinion rendered by this court at the last term, the learned justice speaking for the majority of the court, said: "He (the plaintiff) further testified that the vessel in question wore the Clyde colors; that there was a large 'C' on the flag fastened to the flag staff; that the life preservers, etc., were all marked 'C. S. C.' He also stated that he had some correspondence with the Clyde Steamship Company, the defendant in this action. This, at least, was some evidence tending to prove that the plaintiff made a


contract with the defendant as alleged, and that the defendant had some substantial interest in the vessel."

With great deference for the opinion of the learned justice, we think that the testimony to which he refers, in the light of the finding of the jury upon the issue of ownership, should not have been considered by the jury as tending to prove that the plaintiff made a contract with the defendant. The plaintiff testified that "the writing was to W. T. Clyde & Co. I have written them. I can not say that all letters were so addressed." It is true that he used the words "have a contract with the Clyde Steamship Co." We are unable to see whether this language referred to the alleged contract in controversy or some other contract. If the former, it was a conclusion drawn by the plaintiff rather than the statement of a fact. The plaintiff himself appears to have regarded his employment as being by the Boston Board of Underwriters. He so expressly states. He says that he made. out his account against them and brought suit in Philadelphia, and that he was sent there by the underwriters, all of which is inconsistent with the allegation that he was acting under a contract with the defendant company.

There is no evidence in the record as to when or what company employed the persons who performed the service of saving and floating the steamship, or who or what company took possession of her after she was floated. The plaintiff should undoubtedly be paid for his services, but we do not think that he produced sufficient testimony to be submitted to the jury that he made a contract with the defendant company to render the service. We can well understand that in

the office of the defendant company in New York, in a conversation, in which the president of the defendant company, the president of the company owning the steamship and the superintendent of the defendant company all joined, there should be uncertainty as to which corporation was dealing

« PreviousContinue »