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.

N. H. 467; Tainter v. Lombard, 53 Me. 369, 87 Am. Dec. 552; 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 stat ute 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

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 Chandler 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 an agent, 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

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 contracting parties were agents for other persons, 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

The facts are stated in the opinion. Messrs. J. C. Martin and F. A. Sondley, for appellants:

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.

L. Traction Co. v. Mulholland, 25 Ky. L. Rep. 578, 76 S. W. 148.

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

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

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.

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. 1025; 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.

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.

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.

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.

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.

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

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

take certain propositions as settled: The land over which are the street and sidewalk upon which plaintiff resides was the property of the grantor of the plaintiff. By condemnation proceedings duly had, the city of Asheville acquired an easement over said land for the purpose of enabling it to open and maintain a public street and sidewalk for the use of the citizens of Asheville. That the fee to said land remained in the owner, and was granted to plaintiff, together with the lot, to the outer edge of the sidewalk. The tree, cut down by the defendants, stood upon the sidewalk, on the outer edge, and was not a nuisance to, or interference with the public use of, the sidewalk. That the city. by its charter and amend ments thereto, had control of the street and sidewalk, with all of the powers in regard to the use thereof and of removing obstruc tions therefrom necessary and convenient to that end. That such powers included the right to cut down and remove this or any other tree on the street or sidewalk which. in the judgment of the city authorities, was a nuisance to, or an obstruction of, the public in the use of the street and sidewalk. 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

unless they were going to use it for the purpose for which it was condemned." Before discussing the exceptions which challenge the correctness of this and other instructions involving the same principle, it is proper to say that, by an amendmeint to the charter of the city made subsequent to the condemnation of the land for a street and sidewalk, the city authorities were given power to permit the erection of telegraph, electric light, poles and wires, etc., on and over the public streets of said city. This power, of course, in no manner affects the rights of abutting owners. The legislature could not have intended, because it had no authority, to confer such power, to be exercised in violation of such private rights. It simply empowered the aldermen to grant the franchise over the streets of the city, subject, of course, to the rights of the citizen in respect to his private property. The legislature had no power itself to empower corporations to appropriate private property without compensation, and, of course, could not authorize the city to do so. Chesapeake & P. Teleph. Co. v. Mackenzie, 74 Md. 36, 28 Am. St. Rep. 219, 21 Atl. 690.

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.

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