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brought to enforce contracts for the pur- v. Wells, 56 N. H. 152; McIntire v. Evans, chase of certain goods and merchandise. 59 N. H. 237; Boudreau v. Eastman, 59 Sustained.

N. H. 467; Tainter v. Lombard, 53 Me. 369, Defendants contracted with agent 87 Am. Dec. 552; Huntington v. Knox, 7 of plaintiff to purchase goods to such an Cush. 371; Barry v. Page, 10 Gray, 398; amount that the contract would, under the Winchester v. Howard, 97 Mass. 303, 93 statute of frauds, have been invalid unless Am. Dec. 93; Sims v. Bond, 5 Barn. & Ad. in writing. A sufficient memorandum was 389; Wilson v. Hart, 7 Taunt. 295. Does signed by each defendant to satisfy the the statute of frauds prevent the enforcestatute, and also by the agent, but the fact ment of this principle of agency by excludof the agency or the name of the plaintiff | ing oral evidence to prove the facts to was not disclosed. The court below ruled which it may be applied ? As we have althat the memorandum was insufficient to ready scen, such evidence is admissible in enable the plaintiff to enforce the contracts, the case of a written contract, and it would and granted nonsuits.

seem that it should be equally admissible in Further facts appear in the opinion. the case of a memorandum of an oral conMr. John T. Bartlett for plaintiff. tract within the statute of frauds, unless the

Messrs. Ernest L. Guptill and Page statute clearly excludes it. In Chandler v. & Bartlett, for defendants :

Coe, 54 N. H. 574, it is stated that "it has The memorandum did not comply with been conceded, in the argument for the the statute of frauds because it did not con- defendants, that the statute of frauds intain all the essentials of the contract. It terposes no obstacle to the maintenance of did not contain the name of the plaintitf, an action against a principal, although the who now sues on the alleged contract. The note or memorandum required by the stat. name of a party is essential.

ute is signed by his agent, and the name of Sherburne v. Shaw, 1 N. H. 157, 8 Am. the principal nowhere appears in it.” If Dec. 47; Brown v. Whipple, 58 N. H. 229. this is a correct interpretation of the act, Nonsuit was properly ordered.

the converse proposition must be equally Webster v. Clark, 60 N. H. 36.

true, which would permit an undisclosed

principal to enforce the provisions of the Bingham, J., delivered the opinion of contract by a suit upon it. In Lang v. the court:

Henry, 54 N. H. 57, 60, the court, in speakAs both contracts are for sales of goods ing of this question, said that "parol evi. at prices exceeding $33, they are within dence is admissible to apply the contract the statute of frauds, and the question aris- to the parties, as to show that one of the es whether the memorandum in each case signers acted as agent for the plaintiff or is sufficient to satisfy the requirements of the defendant;" citing Trueman v. Loder, the statute, the plaintiff not being named 11 Ad. & El. 589, and Higgins v. Senior, or described in either of them. In Chand-8 Mees. & W. 834, 835. In these cases it ler v. Coe, 54 N. H. 561, 576, it was held was held that parol evidence was admissi“that, where there is a written contract not ble "to show that one or both of the conunder seal, executed in the name of an tracting parties were agents for other peragent, parol evidence is admissible for the sons, and acted as such agents in making purpose of charging an unknown princi- the contract, so as to give the benefit of the pal;” that the admission of parol testi contract, on the one hand, to, and charge mony for such a purpose and under such with liability, on the other, the unnamed circumstances does not contradict or vary principals; and this whether the agreement the terms of the written instrument, and is be or be not required to be in writing by not admitted for that purpose, but for the the statute of frauds.” The same reasonpurpose of applying and giving effect to an ing was applied in these cases, with refestablished rule of law, to wit, that the act erence to a memorandum under the stat. of the agent in signing the agreement in ute of frauds, as was applied in Chandler pursuance of his authority is in law tlie v. Coe to a written contract. There is act of the principal,--the agent's signature without doubt a conflict of authority upon is the principal's signature. The doctrine the question, but the most reasonable view that an undisclosed principal may sue in seems to be that as to a memorandum of his own name upon a written as well as an a contract for a sale of goods the statute oral contract made by an agent in his own does not change the law regulating the name, and that parol evidence is admissible rights and liabilities of principals and to prove the plaintiff's interest, is well es agents, either as between themselves or as tablished in this state and in other juris- to third parties; that the provisions of the dictions. Elkins v. Boston & M. R. Co. statute are complied with if the names of 19 N. H. 337, 341, 342, 51 Am. Dec. 184; competent contracting parties appear in the Chandler v. Coe, 54 N. H. 561, 576; Bryant | memorandum; and that, if a party be an

In

agent, it is not necessary that the name of approval in our decisions, in so far as it the principal be disclosed in the memoran- held that it was competent to show by dum. See Kingsley v. Siebrecht, 92 Me. parol testimony that one who signed the 30, 69 Am. St. Rep. 486, 42 Atl. 249; memorandum in his own name acted as Williams v. Bacon, 2 Gray, 387; Lerned agent for an undisclosed principal. Chandv. Johns, 9 Allen, 419; Sanborn v. Flag- ler v. Coe, 54 N. H. 571. But to the extent ler, 9 Allen, 474; Gowen v. Klous, 101 that it allowed oral evidence to be introMass. 449; Brodhead v. Reinbold, 200 Pa. duced to show which of the parties signing 618, 86 Am. St. Rep. 735, 50 Atl. 229; the memorandum was vendor and which Thayer v. Luce, 22 Ohio St. 62; Salmon was purchaser it has been disapproved. Falls Mfg. Co. v. Goddard, 14 How. 446, Brown v. Whipple, 58 N. H. 229, 231. If 14 L. ed. 493; Benjamin, Sales, 7th ed. 88 in Brown v. Whipple the memorandum is 208, 219; 3 Parsons, Contr. 9th ed. 10–13; to be considered as signed by the defendant, Browne, Stat. Fr. $$ 373, 375. Sherburne and as designating him as purchaser, it v. Shaw, 1 N. H. 157, 8 Am. Dec. 47, is not failed to name or describe the plaintiff as in conflict with the above cases. In that a party to the contract, or to refer to any case the subject matter of the contract was writings in which he was so named. land, and it was held that the auctioneer, Rafferty v. Lougee, 63 N. H. 54, the memby placing his name upon the memorandum, orandum of sale was not signed by any did not intend to have it understood that one, and it made no reference to any writhe was acting as vendor; that no one was | ings signed by the parties to the contract, named or disclosed in the writings as vend- or in which they were named or described. or; and that, if the auctioneer had intended In McDonald v. Fernald, 68 N. H. 171, 38 to act as agent for the owners, his author- Atl. 729, the memorandum was signed by ity to do so could not be shown by oral | the defendant, and the plaintiff, though evidence, as our statute regulating con- not named, was held to be sufficiently detracts for the sale of land expressly scribed as one of the contracting parties requires the agent's authority to be in by the clause, “all men such as writing. Laws, ed. 1815, p. 191, § 3; Pub. at work for B. R. Condon, subcontractor.” Stat. 1901, chap. 215, § 1. Grafton v. These decisions do not conflict with the Cummings, 99 U. S. 100, 25 L. ed. 366, result we have reached, and we know of and McGovern v. Hern, 153 Mass. 308, 10 no case in this state in which a contrary L. R. A. 815, 25 Am. St. Rep. 632, 26 N. view has been entertained. The order, E. 861, are cases of the same nature, and therefore, in each case is: the decisions are placed upon like grounds. Exceptions sustained. Salmon Falls Mfg. Co. v. Goddard, 14 How. 446, 14 L. ed. 493, has been cited with All concur.

are now

NORTH CAROLINA SUPREME COURT.

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B. C. BROWN and Wife

the owner of the fee for the value of trees

removed to make room for the poles. ASHEVILLE ELECTRIC COMPANY et al.,

3. Punitive damages may be allowed

for the cutting of trees upon the Appts.

sidewalk for the accommodation of elec

tric-light wires, in entire disregard of the (138 N. C. 534.)

rights of the abutting owner, and against

his protest. 1. Authority given to a municipal cor

poration to permit the erection of telegrapıb and electric-light wires and poles

(May 26, 1905.) in the streets does not include power to vio

late private rights. 2. Municipal authority to place poles

of the Superior Court for Buncombe for the support of electric-light wires upon the sidewalk of a certain street does County in favor of plaintiffs in an action not relieve the one so doing from liability to I brought to recover damages for the alleged

NOTE.-For other cases in this series as to 60 L. R. A. 426; Hazlehurst v. Mayes, 64 L. cutting of trees in highway to make room for R. A. 805. electric wires, see Bradley v. Southern New As to right of street railway company to reEngland Teleph. Co. 32 L. R. A. 280 ; South move shade trees in the construction of its road, ern Bell Teleph. & Teleg. Co. v. Francis, 31 see Miller v. Detroit, Y. & A. A. R. Co. 51 L. R. L. R. A. 193; Wyant v. Central Teleph. Co. 47 A. 955. L. R. A. 497; Bronson v. Albion Teleph. Co.

A

wrongful destruction of trees belonging to for the purpose of erecting electric poles them. Affirmed.

and wires. The facts are stated in the opinion.

1 Lewis, Em. Dom. pp. 318, 320; Miller Messrs. J. C. Martin and F. A. Sond- v. Detroit, y. & A. A. R. Co. 125 Mich. 171, ley, for appellants:

51 L. R. A. 955, 84 Am. St. Rep. 569, 84 The removal of the tree complained of in N. W. 49; Wyant v. Central Teleph. Co. 123 this action was, in truth, the act of the Mich. 51, 47 L. R. A. 497, 81 Am. St. Rep. city of Asheville. The city had delegated | 155, 81 N. W. 928; Dodd v. Consolidated the control of the streets and matters re. Traction Co, 57 N. J. L. 482, 31 Atl. 980; lating thereto to a street committee. It had Southern Bell Teleph. Co. v. Francis, 109 the right to do this, and such a course was Ala. 224, 31 L. R. A. 193, 55 Am. St. Rep. entirely lawful and regular.

930, 19 So. 1; Hazlehurst v. Mayes, 84 Miss. Tate v. Greensboro, 114 N. C. 392, 24 L. 7, 64 L. R. A. 805, 36 So. 33; Georgetown & R. A. 671, 19 S. E. 767.

L. Traction Co. v. Mulholland, 25 Ky. L. The city could ratify such an act, even if Rep. 578, 76 S. W. 148. it had not directed it in the first instance. For these purposes the sidewalk is a part

Wolfe v. Pearson, 114 N. C. 621, 19 S. E. of the street. 264.

Tate v. Greensboro, 114 N. C. 392, 24 L. The city had the right to remove shade R. A. 671, 19 S. E. 767; Chase v. Oshkosh, trees in the street.

81 Wis. 313, 15 L. R. A. 553, 29 Am. St. Tate v. Greensboro, 114 N. C. 392, 24 L. Rep. 898, 51 N. W. 560; 2 Beach, Mun. Corp. R. A. 671, 19 S. E. 767; Chase v. Oshkosh, s 1234; 2 Dill. Mun. Corp. $$ 614, 686. 81 Wis. 313, 15 L. R. A. 553, 29 Am. St. The municipality has the right to confer Rep. 898, 51 N. W. 560; 2 Dill. Mun. Corp. upon a public-service corporation the privi§ 688; 2 Beach, Pub. Corp. § 1234; 1 Beach, lege of using any portion of the condemned Pub. Corp. § 568; Gaylord v. King, 142 street, whether it has been used for any Mass. 495, 8 N. E. 596; Brainard v. Clapp, other street purpose or not. 10 Cush. 6, 57 Am. Dec. 74.

Miller v. Detroit, Y. & A. A. R. Co. 125 The action of the city in directing the Mich. 171, 51 L. R. A. 955, 84 Am. St. Rep. removal of the trees, as well as its action in 569, 84 N. W. 49; Dodd v. Consolidated subsequently ratifying such removal, is not Traction Co. 57 N. J. L. 482, 31 Atl. 980; subject to review at the hands of the court. Southern Bell Teleph. Co. v. Francis, 109

Tate v. Greensboro, 114 N. C. 392, 24 L. Ala. 224, 31 L. R. A. 193, 55 Am. St. Rep. R. A. 671, 19 S. E. 767; Chase v. Oshkosh. 930, 19 So. 1; Georgetown & L. Traction Co. 81 Wis. 313, 15 L. R. A. 553, 29 Am. St. v. Mulholland, 25 Ky. L. Rep. 578, 76 S. W. Rep. 898, 51 N. W. 560; 1 Lewis, Em. Dom. 148. p. 319; 2 Beach, Pub. Corp. § 1234.

Messrs. Frank Carter and H. C. Land condemned for a street is so con- Chedester, for appellees: demned for all purposes to which a street The question as to whether the tree was is properly put.

in fact taken for public purposes, or for the Elliott, Roads & Streets, 529, 530; 2 Dill. private gain and advantage of defendants, Mun. Corp. $8 6566, 683, 688.

was for the jury. Electric poles are among these uses.

Stratford v. Greensboro, 124 N. C. 127, 32 Smith v. Goldsboro, 121 N. C. 350, 28 S. 9. E. 394; Seattle & M. R. Co. v. State, 7 E. 479; Mordhurst v. Ft. Wayne & s. w. Wash. 150, 22 L. R. A. 222, 38 Am. St. Traction Co. (Ind.) 66 L. R. A. 105, 71 N. Rep. 866, 34 Pac. 551; Cooley, Const. Lim. E. 642; McCann v. Johnson County Teleph. 763, 764, 774, 775. Co. 69 Kan. 210, 66 L. R. A. 171, 76 Pac.

The abutting owner has a remedy in tres. 870; Eustis v. Milton Street R. Co. 183 pass for wrongful destruction of shade trees

in the street. Mass. 586, 67 N. E. 663; New England Teleph. & Teleg. Co. v. Boston Terminal Co. Mun. Corp. 88 656a, b, 663, p. 791, note.

Elliott, Roads & Streets, $$ 690, 708; Dill. 182 Mass. 397, 65 N. E. 835; White v.

The courts are authorized to interfere Blanchard Bros. Granite Co. 178 Mass. 363, where there is an abuse of discretion by 59 N. E. 1025; Austin v. Detroit, Y. & A. the municipal authorities in removing valuA. R. Co. 134 Mich. 149, 96 N. W. 35.

able shade trees without any reasonable neSuch uses of a street do not constitute an

cessity therefor. additional servitude upon the land occupied Lewis, Em. Dom. $ 132a; Atlanta v. IIolli. thereby.

day, 96 Ga. 516, 23 S. E. 509. Smith v. Goldsboro, 121 N. C. 350, 28 S. E. 479; 1 Lewis, Em. Dom. $8 160-162; Connor, J., delivered the opinion of the Raleigh & G. R. Co. v. Daris, 19 N. C. (2 court: Dev. & B. L.) 451.

For the purpose of disposing of the ques. Trees in a street may be cut or removed tions presented upon this record, we may

take certain propositions as settled: The unless they were going to use it for the purland over which are the street and side- pose for which it was condemned.” Before walk upon which plaintiff resides was the discussing the exceptions which challenge property of the grantor of the plaintiff. By the correctness of this and other instructions condemnation proceedings duly had, the city involving the same principle, it is proper to of Asheville acquired an easement over said say that, by an amendmeint to the charter land for the purpose of enabling it to open of the city made subsequent to the condemand maintain a public street and sidewalk nation of the land for a street and sidewalk, for the use of the citizens of Asheville. the city authorities were given power to That the fee to said land remained in the permit the erection of telegraph, electric owner, and was granted to plaintiff, to light, poles and wires, etc., on and over the gether with the lot, to the outer edge of the public streets of said city. This power, of sidewalk. The tree, cut down by the defend- course, in no manner affects the rights of ants, stood upon the sidewalk, on the outer abutting owners. The legislature could not edge, and was not a nuisance to, or interfer-have intended, because it had no authority, ence with the public use of, the sidewalk. to confer such power, to be exercised in That the city. by its charter and amend violation of such private rights. It simply ments thereto, had control of the street and empowered the aldermen to grant the fransidewalk, with all of the powers in regard chise over the streets of the city, subject, of to the use thereof and of removing obstruc course, to the rights of the citizen in respect tions therefrom necessary and convenient to to his private property. The legislature had that end. That such powers included the no power itself to empower corporations right to cut down and remove this or any to appropriate private property without other tree on the street or sidewalk which compensation, and, of course, could not auin the judgment of the city authorities, was thorize the city to do so. Chesapeake & P. a nuisance to, or an obstruction of, the pub. Teleph. Co. v. Mackenzie, 74 Md. 36, 28 Am. lic in the use of the street and sidewalk. St. Rep. 219, 21 Atl. 690. That said tree afforded shade to the premis- There are a large number of exceptions es and residence of plaintiff, 'and its re- to His Honor's charge, both in respect to moval depreciated the value of plaintiff's instructions given and refused. We do not property to the extent of $499, as found by deem it necessary to pass upon all of them, the jury. In view of His Honor's instruc- because, in our view of the case, assuming tion to the jury, we must assume that the the facts to be as contended by defendants, jury found, and we find ample reason to we find no error in the record. Conceding justify such finding, that the defendant elec- to the city of Asheville the largest possible tric light company, with the permission of powers in respect to opening and controlling the superintendent of streets of the city of its public streets, they must all be construed Asheville, afterwards approved by the board and exercised within the well-defined limiof aldermen, removed the tree for the pur- tation that they are held and to be used as pose of more conveniently erecting its poles a public trust for the benefit of the citizens and stringing its electric wires along the of Asheville, and not for the convenience, street. His Honor thus stated the conten- or even the necessities, of private persons tion on the part of the defendants: “The de- or corporations. In speaking of the exercise fendants contend that they had the right to of this power, the New York court says: cut down this tree on account of the fact “But think it cannotunder guise that the land was condemned for a street, of exercising this power, appropriate a part that they had the right to cut it down for of a street to the exclusive, or practically any purpose, and especially that they had to the exclusive, use of a railroad company, the right to cut it down for the purpose of so as to cut off abutting owners from the allowing electric-light wires to pass there, use of any part of the street,

withwhich they say was for the benefit of the out making compensation for the injury suspublic. The court charges you that if that tained.” Reining v. New York, L. & W. R. was the purpose, and the city allowed the Co. 128 N. Y. 168, 14 L. R. A. 133, 28 N. E. corporations that ran the electric-light wires 640. and the railroad company to do so more con- As the question is one of much practical veniently, then it would be your duty to importance to the people of the state, we answer the first issue, 'Yes.' The city would will endeavor to mark the line which limits not have the right, as the court views the the power of municipal and quasi public matter, to cut down that tree for the corporations, or private corporations enpurpose of appropriating that part of gaged in public service, in interfering with the land for the use of the defendants the rights of abutting owners upon streets unless the condemnation was for the pur and highways. This court has in Tate v. pose of the city, and they would not have Greensboro, 114 N. C. 392, 24 L. R. A. 671, the right to go there and cut down the tree | 19 S. E. 767, defined the power which the

we

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duly constituted city authorities have in | 639, 18 S. E. 330; Phillips v. Postal Teleg. opening, widening, using, and controlling Cable Co. 130 N. C. 513, 89 Am. St. Rep. public streets. That this power, when exer- 868, 41 S. E. 1022; Hodges v. Western U. cised for the purpose and objects for which Teleg. Co. 133 N. C. 225, 45 S. E. 572. it is granted, and in good faith, is not sub. Such conflict as may be found in the deci. ject to the supervision of the courts, is well sions arises out of the application of the decided in that case. We have no disposi- principle. It is uniformly held that an easetion to bring that decision, or anything said ment acquired for one purpose, either by therein, into question. We adopt what is grant, dedication, or condemnation, cannot said by Mr. Justice Burwell as stating the be appropriated to another purpose. “It is principle upon which our decision is based : certainly well settled that, where a grant "It is not to be denied that the abutting is made or trust created for a specific and proprietor has rights as an individual in the refined purpose, the subject of the grant or street in his front, as contradistinguished trust cannot be used for another and foreign from his rights therein as a member of the purpose without the consent of the party corporation or one of the public. The trees from whom it was derived, or for whose standing in the street along the sidewalk benefit it was created.

We are not are, in a restricted sense, his trees. If they considering the right of the corporation to are cut or injured by an individual who has part with whatever interest it possessed no authority from the city to cut or remove under the dedication and trust, but the pow. them, he may recover damages of such in- er of the corporation under the legislature dividual. His property in them is such that to deprive the owner of a lot fronting on the law will protect it from the act of such land so dedicated.

'It cannot be a wrongdoer and trespasser." Where it is successfully contended either that the dedi. said "who has no authority from the city,” cation of land for a highway gives to the it is meant no lawful authority, because, as public an unlimited use, or that the legis. we shall see, the city has no power to confer lature have the power to encroach upon the authority except in the manner and for the reserved rights of the owner by materially purpose for which it may do the act itself. enlarging or changing the nature of the pubMany of the decisions discussing the right lic easement.' New York Elev. R. Co.'s of abutting owners upon streets and high-Case, 90 N. Y. 122, 43 Am. Rep. 146. ways make a distinction between owners

In respect to an easement acquired by . holding the fee in the land, and those who condemnation, the reason is obvious: In ashave only such rights as accrue from their | sessing compensation the commissioners are locntion on the side of the street. It is con- restricted to such damages as are incident ceded that the fee to the land upon which to the specific use for which the condemnathe sidewalk is located and the abutting lottion is made. While the city authorities is in the plaintiff

. We shall discuss the had ample power to confer upon the defendcase from that view. The condemnation for ants a franchise to lay their tracks, erect a street and sidewalk therefore gave to the their poles, and string their wires along the city an easement, the limit and extent of streets or sidewalks, if such franchise did which, both in respect to the use and the not materially restrict or interfere with the time of its enjoyment are measured by the public use for which it was held in trust, public necessity. "Where an easement (on such power could not affect the right of ly) is taken for a public highway, the pub-butting owners to demand compensation for lic acquire a paramount right to use and any additional burden imposed upon their improve the land taken for highway pur property. The fact that the defendant corposes, which includes not only the right of oration was operating a public utility does passage, but such other incidental uses as

not affect the question; the only difference have been immemorially accustomed to be being that, if the city conferred the privilege made of public highways, such as the laying upon a private citizen or a corporation oper. of sewers, gas and water pipes, and the like.” ting a private business, and its enjoyment 2 Lewis, Em. Dom. $ 589 : Barney v. Keokuk. I interfered with the right of an abutting 94 U. S. 324, 24 L. ed. 224. This court has owner, no right to continue the use of the uniformly held that the right acquired by privilege could be acquired except by grant; condemnation is confined to the public ne. whereas, if the person or corporation is concessity, and to the uses for which property (ucting a business concerning the public.is taken or burdened with the easement; one conferring the right of eminent domain, that, for any additional burden placed upon --the right to use the franchise or privilege the servient tenement, compensation must may be acquired by condemnation, and paybe made. Story v. New York Elev. R. Co. ing the abutting owner compensation for 90 N. Y. 122, 43 Am. Rep. 146: White v. the additional burden. The doctrine is well Northwestern North Carolina R. Co. 113 stated in Reining v. New York, L. & W. R. N. C. 610, 22 L. R. A, 627, 37 Am. St. Rep. Co. 128 N. Y. 168, 14 L. R. A. 133, 28 N.

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