Imagens das páginas

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, 87 Am. Dec. 352; Huntington v. Knox, 7 Cush. 371; Barry v. Page, 10 Gray, 398; Winchester v. Howard, 97 Mass. 303, 93 Am. Dec. 93; Sims v. Bond, 5 Barn. & Ad. 389; Wilson v. Hart, 7 Taunt. 295. Does the statute of frauds prevent the enforcement of this principle of agency by excluding oral evidence to prove the facts to which it may be applied? As we have already seen, such evidence is admissible in the case of a written contract, and it would seem that it should be equally admissible in the case of a memorandum of an oral contract within the statute of frauds, unless the statute clearly excludes it. In Chandler v. Coe, 54 N. H. 574, it is stated that "it has been conceded, in the argument for the defendants, that the statute of frauds interposes no obstacle to the maintenance of an action against a principal, although the note or memorandum required by the statute is signed by his agent, and the name of the principal nowhere appears in it." If this is a correct interpretation of the act, the converse proposition must be equally 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 speaking of this question, said that "parol evidence is admissible to apply the contract to the parties, as to show that one of the signers acted as agent for the plaintiff or the defendant;" citing Trueman v. Loder, 11 Ad. & El. 589, and Higgins v. Senior, 8 Mees. & W. 834, 835. In these cases it was held that parol evidence was admissible "to show that one or both of the con

Defendants contracted with an agent of plaintiff to purchase goods to such an amount that the contract would, under the statute of frauds, have been invalid unless in writing. A sufficient memorandum was signed by each defendant to satisfy the statute, and also by the agent, but the fact of the agency or the name of the plaintiff was not disclosed. The court below ruled that the memorandum was insufficient to enable the plaintiff to enforce the contracts, and granted nonsuits.

Further facts appear in the opinion.
Mr. John T. Bartlett for plaintiff.
Messrs. Ernest L. Guptill and Page
& Bartlett, for defendants:

The memorandum did not comply with the statute of frauds because it did not contain all the essentials of the contract. It did not contain the name of the plaintiff, who now sues on the alleged contract. The name of a party is essential.

Sherburne v. Shaw, 1 N. H. 157, 8 Am.
Dec. 47; Brown v. Whipple, 58 N. H. 229.
Nonsuit was properly ordered.
Webster v. Clark, 60 N. H. 36.

As both contracts are for sales of goods at prices exceeding $33, they are within the statute of frauds, and the question arises whether the memorandum in each case is sufficient to satisfy the requirements of the statute, the plaintiff not being named or described in either of them. In Chand ler v. Coe, 54 N. H. 561, 576, it was held "that, where there is a written contract not under seal, executed in the name of antracting parties were agents for other peragent, parol evidence is admissible for the purpose of charging an unknown principal;" that the admission of parol testimony for such a purpose and under such circumstances does not contradict or vary the terms of the written instrument, and is not admitted for that purpose, but for the purpose of applying and giving effect to an established rule of law, to wit, that the act of the agent in signing the agreement in pursuance of his authority is in law the act of the principal,-the agent's signature is the principal's signature. The doctrine that an undisclosed principal may sue in his own name upon a written as well as an oral contract made by an agent in his own name, and that parol evidence is admissible to prove the plaintiff's interest, is well established in this state and in other jurisdictions. Elkins v. Boston & M. R. Co. 19 N. H. 337, 341, 342, 51 Am. Dec. 184; Chandler v. Coe, 54 N. H. 561, 576; Bryant

sons, and acted as such agents in making the contract, so as to give the benefit of the contract, on the one hand, to, and charge with liability, on the other, the unnamed principals; and this whether the agreement be or be not required to be in writing by the statute of frauds." The same reasoning was applied in these cases, with reference to a memorandum under the statute of frauds, as was applied in Chandler v. Coe to a written contract. There is without doubt a conflict of authority upon the question, but the most reasonable view seems to be that as to a memorandum of a contract for a sale of goods the statute does not change the law regulating the rights and liabilities of principals and agents, either as between themselves or as to third parties; that the provisions of the statute are complied with if the names of competent contracting parties appear in the memorandum; and that, if a party be an

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-
dum. See Kingsley v. Siebrecht, 92 Me.
30, 69 Am. St. Rep. 486, 42 Atl. 249;
Williams v. Bacon, 2 Gray, 387; Lerned
v. Johns, 9 Allen, 419; Sanborn v. Flag-
ler, 9 Allen, 474; Gowen v. Klous, 101
Mass. 449; Brodhead v. Reinbold, 200 Pa.
618, 86 Am. St. Rep. 735, 50 Atl. 229;
Thayer v. Luce, 22 Ohio St. 62; Salmon
Falls Mfg. Co. v. Goddard, 14 How. 446,
14 L. ed. 493; Benjamin, Sales, 7th ed. §§
208, 219; 3 Parsons, Contr. 9th ed. 10-13;
Browne, Stat. Fr. §§ 373, 375. Sherburne
v. Shaw, 1 N. H. 157, 8 Am. Dec. 47, is not
in conflict with the above cases. In that
case the subject-matter of the contract was
land, and it was held that the auctioneer,
by placing his name upon the memorandum,
did not intend to have it understood that
he was acting as vendor; that no one was
named or disclosed in the writings as vend-
or; and that, if the auctioneer had intended
to act as agent for the owners, his author-
ity to do so could not be shown by oral
evidence, as our statute regulating con-
tracts for the sale of land expressly
requires the agent's authority to be in
writing. Laws, ed. 1815, p. 191, § 3; Pub.
Stat. 1901, chap. 215, § 1. Grafton v.
Cummings, 99 U. S. 100, 25 L. ed. 366,
and McGovern v. Hern, 153 Mass. 308, 10
L. R. A. 815, 25 Am. St. Rep. 632, 26 N.
E. 861, are cases of the same nature, and
the decisions are placed upon like grounds.
Salmon Falls Mfg. Co. v. Goddard, 14 How.
446, 14 L. ed. 493, has been cited with

held that it was competent to show by
parol testimony that one who signed the
memorandum in his own name acted as
agent for an undisclosed principal. Chand-
ler v. Coe, 54 N. H. 571. But to the extent
that it allowed oral evidence to be intro-
duced to show which of the parties signing
the memorandum was vendor and which
was purchaser it has been disapproved.
Brown v. Whipple, 58 N. H. 229, 231. If
in Brown v. Whipple the memorandum is
to be considered as signed by the defendant,
and as designating him as purchaser, it
failed to name or describe the plaintiff as
a party to the contract, or to refer to any
writings in which he was so named. In
Rafferty v. Lougee, 63 N. H. 54, the mem-
orandum of sale was not signed by any
one, and it made no reference to any writ-
ings signed by the parties to the contract,
or in which they were named or described.
In McDonald v. Fernald, 68 N. H. 171, 38
Atl. 729, the memorandum was signed by
the defendant, and the plaintiff, though
not named, was held to be sufficiently de-
scribed as one of the contracting parties
by the clause, "all men such as are now
at work for B. R. Condon, subcontractor."
These decisions do not conflict with the
result we have reached, and we know of
no case in this state in which a contrary
view has been entertained. The order,
therefore, in each case is:
Exceptions sustained.

B. C. BROWN and Wife




(138 N. C. 534.)

1. Authority given to a municipal corporation to permit the erection of telegraph and electric-light wires and poles in the streets does not include power to vio late private rights.

2. Municipal authority to place poles for the support of electric-light wires

upon the sidewalk a certain street does not relieve the one so doing from liability to

All concur.

NOTE. For other cases in this series as to cutting of trees in highway to make room for electric wires, see Bradley v. Southern New England Teleph. Co. 32 L. R. A. 280: Southern Bell Teleph. & Teleg. Co. v. Francis, 31 L. R. A. 193; Wyant v. Central Teleph. Co. 47 L. R. A. 497; Bronson v. Albion Teleph. Co.

the owner of the fee for the value of trees removed to make room for the poles.

3. Punitive damages may be allowed for the cutting of trees upon the sidewalk for the accommodation of electric-light wires, in entire disregard of the rights of the abutting owner, and against his protest.

(May 26, 1905.)

PPEAL by defendants from a judgment A of the Superior Court for Buncombe County in favor of plaintiffs in an action brought to recover damages for the alleged

60 L. R. A. 426; Hazlehurst v. Mayes, 64 L. R. A. 805.

As to right of street railway company to remove shade trees in the construction of its road, see Miller v. Detroit, Y. & A. A. R. Co. 51 L. R. A. 955.

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

and wires.

The facts are stated in the opinion.

Messrs. J. C. Martin and F. A. Sondley, for appellants:

The removal of the tree complained of in this action was, in truth, the act of the city of Asheville. The city had delegated the control of the streets and matters relating thereto to a street committee. It had 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. Rep. 578, 76 S. W. 148.

The city could ratify such an act, even if it had not directed it in the first instance. Wolfe v. Pearson, 114 N. C. 621, 19 S. E. 264.

For these purposes the sidewalk is a part of the street.

Tate v. Greensboro, 114 N. C. 392, 24 L.

1 Lewis, Em. Dom. pp. 318, 320; Miller v. Detroit, Y. & A. A. R. Co. 125 Mich. 171, 51 L. R. A. 955, 84 Am. St. Rep. 569, 84 N. W. 49; Wyant v. Central Teleph. Co. 123 Mich. 51, 47 L. R. A. 497, 81 Am. St. Rep. 155, 81 N. W. 928; Dodd v. Consolidated Traction Co. 57 N. J. L. 482, 31 Atl. 980; Southern Bell Teleph. Co. v. Francis, 109

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. Rep. 898, 51 N. W. 560; 2 Beach, Mun. Corp. § 1234; 2 Dill. Mun. Corp. §§ 614, 686.

The municipality has the right to confer upon a public-service corporation the privilege of using any portion of the condemned street, whether it has been used for any other street purpose or not.

Miller v. Detroit, Y. & A. A. R. Co. 125 Mich. 171, 51 L. R. A. 955, 84 Am. St. Rep. 569, 84 N. W. 49; Dodd v. Consolidated Traction Co. 57 N. J. L. 482, 31 Atl. 980; Southern Bell Teleph. Co. v. Francis, 109 Ala. 224, 31 L. R. A. 193, 55 Am. St. Rep. 930, 19 So. 1; Georgetown & L. Traction Co. v. Mulholland, 25 Ky. L. Rep. 578, 76 S. W. 148.

Tate v. Greensboro, 114 N. C. 392, 24 L. R. A. 671, 19 S. E. 767; Chase v. Oshkosh, 81 Wis. 313, 15 L. R. A. 553, 29 Am. St. Rep. 898, 51 N. W. 560; 2 Dill. Mun. Corp. § 688; 2 Beach, Pub. Corp. § 1234; 1 Beach, Pub. Corp. § 568; Gaylord v. King, 142 Mass. 495, 8 N. E. 596; Brainard v. Clapp, 10 Cush. 6, 57 Am. Dec. 74.

The action of the city in directing the removal of the trees, as well as its action in subsequently ratifying such removal, is not subject to review at the hands of the court.

Tate v. Greensboro, 114 N. C. 392, 24 L. R. A. 671, 19 S. E. 767; Chase v. Oshkosh. 81 Wis. 313, 15 L. R. A. 553, 29 Am. St. Rep. 898, 51 N. W. 560; 1 Lewis, Em. Dom. p. 319; 2 Beach, Pub. Corp. § 1234.

Land condemned for a street is so condemned for all purposes to which a street is properly put.

Elliott, Roads & Streets, 529, 530; 2 Dill. Mun. Corp. §§ 6566, 683, 688.

Messrs. Frank Carter and H. C. Chedester, for appellees:

The question as to whether the tree was in fact taken for public purposes, or for the private gain and advantage of defendants, was for the jury.

Stratford v. Greensboro, 124 N. C. 127, 32 S. E. 394; Seattle & M. R. Co. v. State, 7 Wash. 150, 22 L. R. A. 222, 38 Am. St. Rep. 866, 34 Pac. 551; Cooley, Const. Lim. 763, 764, 774, 775.

The abutting owner has a remedy in trespass for wrongful destruction of shade trees in the street.

Electric poles are among these uses.
Smith v.
Goldsboro, 121 N. C. 350, 28 S.
E. 479; Mordhurst v. Ft. Wayne & S. W.
Traction Co. (Ind.) 66 L. R. A. 105, 71 N.
E. 642; McCann v. Johnson County Teleph.
Co. 69 Kan. 210, 66 L. R. A. 171, 76 Pac.
870; Eustis v. Milton Street R. Co. 183
Mass. 586, 67 N. E. 663; New England

Teleph. & Teleg. Co. v. Boston Terminal Co.

182 Mass. 397, 65 N. E. 835; White v. Blanchard Bros. Granite Co. 178 Mass. 363, 59 N. E. 1925; Austin v. Detroit, Y. & A.

A. R. Co. 134 Mich. 149, 96 N. W. 35.

Such uses of a street do not constitute an additional servitude upon the land occupied thereby.

Lewis, Em. Dom. § 132a; Atlanta v. Holliday, 96 Ga. 546, 23 S. E. 509.

Smith v. Goldsboro, 121 N. C. 350, 28 S. E. 479; 1 Lewis, Em. Dom. §§ 160–162; Raleigh & G. R. Co. v. Davis, 19 N. C. (2 Dev. & B. L.) 451.

Connor, J., delivered the opinion of the court:

For the purpose of disposing of the ques

Trees in a street may be cut or removed tions presented upon this record, we may

Elliott, Roads & Streets, §§ 690, 708; Dill.

Mun. Corp. §§ 656a, b, 663, p. 791, note.

The courts are authorized to interfere where there is an abuse of discretion by the municipal authorities in removing valuable shade trees without any reasonable necessity therefor.

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 premises and residence of plaintiff, and its removal depreciated the value of plaintiff's property to the extent of $499, as found by the jury. In view of His Honor's instruction to the jury, we must assume that the jury found, and we find ample reason to justify such finding, that the defendant electric light company, with the permission of the superintendent of streets of the city of Asheville, afterwards approved by the board of aldermen, removed the tree for the purpose of more conveniently erecting its poles and stringing its electric wires along the street. His Honor thus stated the contention on the part of the defendants: "The defendants contend that they had the right to cut down this tree on account of the fact that the land was condemned for a street, that they had the right to cut it down for any purpose, and especially that they had the right to cut it down for the purpose of allowing electric-light wires to pass there, which they say was for the benefit of the public. The court charges you that if that was the purpose, and the city allowed the corporations that ran the electric-light wires and the railroad company to do so more conveniently, then it would be your duty to answer the first issue, 'Yes.' The city would not have the right, as the court views the matter, to cut down that tree for the purpose of appropriating that part of the land for the use of the defendants unless the condemnation was for the purpose of the city, and they would not have the right to go there and cut down the tree

There are a large number of exceptions to His Honor's charge, both in respect to instructions given and refused. We do not deem it necessary to pass upon all of them, because, in our view of the case, assuming the facts to be as contended by defendants, we find no error in the record. Conceding to the city of Asheville the largest possible powers in respect to opening and controlling its public streets, they must all be construed and exercised within the well-defined limitation that they are held and to be used as a public trust for the benefit of the citizens of Asheville, and not for the convenience, or even the necessities, of private persons or corporations. In speaking of the exercise of this power, the New York court says: "But we think it cannot, under guise of exercising this power, appropriate a part of a street to the exclusive, or practically to the exclusive, use of a railroad company, so as to cut off abutting owners from the use of any part of the street, without making compensation for the injury sustained." Reining v. New York, L. & W. R. Co. 128 N. Y. 168, 14 L. R. A. 133, 28 N. E. 640.

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As the question is one of much practical importance to the people of the state, we will endeavor to mark the line which limits the power of municipal and quasi public corporations, or private corporations engaged in public service, in interfering with the rights of abutting owners upon streets and highways. This court has in Tate v. Greensboro, 114 N. C. 392, 24 L. R. A. 671, 19 S. E. 767, defined the power which the

duly constituted city authorities have in | 639, 18 S. E. 330; Phillips v. Postal Teleg. Cable Co. 130 N. C. 513, 89 Am. St. Rep. 868, 41 S. E. 1022; Hodges v. Western U. Teleg. Co. 133 N. C. 225, 45 S. E. 572. Such conflict as may be found in the decisions arises out of the application of the principle. It is uniformly held that an easement acquired for one purpose, either by grant, dedication, or condemnation, cannot be appropriated to another purpose. "It is certainly well settled that, where a grant is made or trust created for a specific and defined purpose, the subject of the grant or trust cannot be used for another and foreign purpose without the consent of the party from whom it was derived, or for whose benefit it was created. . . We are not considering the right of the corporation to part with whatever interest it possessed under the dedication and trust, but the pow er of the corporation under the legislature to deprive the owner of a lot fronting on land so dedicated. 'It cannot be successfully contended either that the dedication of land for a highway gives to the public an unlimited use, or that the legis lature have the power to encroach upon the reserved rights of the owner by materially enlarging of changing the nature of the public easement.'" New York Elev. R. Co.'s Case, 90 N. Y. 122, 43 Am. Rep. 146.

opening, widening, using, and controlling public streets. That this power, when exercised for the purpose and objects for which it is granted, and in good faith, is not subject to the supervision of the courts, is well decided in that case. We have no disposition to bring that decision, or anything said therein, into question. We adopt what is said by Mr. Justice Burwell as stating the principle upon which our decision is based: "It is not to be denied that the abutting proprietor has rights as an individual in the street in his front, as contradistinguished from his rights therein as a member of the corporation or one of the public. The trees standing in the street along the sidewalk are, in a restricted sense, his trees. If they are cut or injured by an individual who has no authority from the city to cut or remove them, he may recover damages of such individual. His property in them is such that the law will protect it from the act of such a wrongdoer and trespasser." Where it is said "who has no authority from the city," it is meant no lawful authority, because, as we shall see, the city has no power to confer authority except in the manner and for the purpose for which it may do the act itself. Many of the decisions discussing the right of abutting owners upon streets and highways make a distinction between owners holding the fee in the land, and those who have only such rights as accrue from their location on the side of the street. It is conceded that the fee to the land upon which the sidewalk is located and the abutting lot is in the plaintiff. We shall discuss the case from that view. The condemnation for a street and sidewalk therefore gave to the city an easement, the limit and extent of which, both in respect to the use and the time of its enjoyment are measured by the public necessity. "Where an easement [on ly] is taken for a public highway, the pub-butting owners to demand compensation for any additional burden imposed upon their property. The fact that the defendant corboration was operating a public utility does not affect the question; the only difference being that, if the city conferred the privilege upon a private citizen or a corporation operating a private business, and its enjoyment interfered with the right of an abutting owner, no right to continue the use of the privilege could be acquired except by grant: whereas, if the person or corporation is conducting a business concerning the public.— one conferring the right of eminent domain,

In respect to an easement acquired by, condemnation, the reason is obvious: In assessing compensation the commissioners are restricted to such damages as are incident to the specific use for which the condemnation is made. While the city authorities had ample power to confer upon the defendants a franchise to lay their tracks, erect their poles, and string their wires along the streets or sidewalks, if such franchise did not materially restrict or interfere with the public use for which it was held in trust, such power could not affect the right of

lic acquire a paramount right to use and improve the land taken for highway pur poses, which includes not only the right of passage, but such other incidental uses as have been immemorially accustomed to be made of public highways, such as the laying of sewers, gas and water pipes, and the like." 2 Lewis. Em. Dom. § 589: Barney v. Keokuk. 94 U. S. 324, 24 L. ed. 224. This court has uniformly held that the right acquired by condemnation is confined to the public ne cessity, and to the uses for which property is taken or burdened with the easement; that, for any additional burden placed upon the servient tenement, compensation must be made. Story v. New York Elev. R. Co. 90 N. Y. 122, 43 Am. Rep. 146; White v. Northwestern North Carolina R. Co. 113 N. C. 610, 22 L. R. A. 627, 37 Am. St. Rep.

the right to use the franchise or privilege may be acquired by condemnation, and paying the abutting owner compensation for the additional burden. The doctrine is well stated in Reining v. New York, L. & W. R. Co. 128 N. Y. 168, 14 L. R. A. 133, 28 N.

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