#### A. B. McDOUGALD v. TIDE WATER POWER COMPANY.

(Filed 20 November, 1935.)

1. Corporations E c — Nonsuit is proper in absence of evidence of authority of corporate agent to make agreement sued on.

Plaintiff alleged tbat tbe agent of defendant corporation sold stock in tbe corporation to plaintiff, and as an inducement to tbe purchase of tbe stock, entered an authorized agreement tbat tbe corporation would thereafter repurchase the stock at a stipulated price. Tbe corporate agent testified tbat tbe agreement was tbat tbe corporation would resell tbe stock and charge a certain commission per share. *Heló,:*In tbe absence of evidence tbat tbe agent of tbe corporation was authorized by it to make tbe agreement alleged by plaintiff, defendant corporation’s motion to non-suit was properly granted.

2. Evidence D h—

Where a corporate agent, as plaintiff’s witness, testifies as to terms and conditions of tbe sale of stock by defendant corporation to plaintiff, the' exclusion of evidence of dissimilar terms and conditions upon which tbe agent sold stock to other persons will not be held for error.

Devin, X, took no part in tbe consideration or decision of tbis ease.

Appeal by plaintiff from *Grady, J.,*at January Term, 1935, of BladeN.

Affirmed.

Tbis is an action to recover of tbe defendant on tbe first cause of action alleged in tbe complaint tbe sum of $2,496, witb interest on said sum from 16 July, 1933, and on tbe second cause of action alleged in tbe complaint tbe sum of $576.00, witb interest on said sum from 16 July, 1933.

As bis first cause of action, tbe plaintiff alleges tbat on 15 December, 1930, tbe defendant sold to tbe plaintiff 26 shares of its capital stock, at $98.00 per share, and upon tbe payment by tbe plaintiff to tbe defendant of tbe sum of $2,548, delivered to tbe plaintiff a certificate for said 26 shares of its capital stock; tbat said sale was made on defendant’s behalf by T C. Connor, an agent and employee of tbe defendant, who *765was authorized by the defendant, as an inducement to plaintiff to purchase said shares of stock, to agree and who did agree on behalf of the defendant that the defendant would refund to the plaintiff the sum of $96.00 for each of said shares, upon notice to defendant of not less than ten or more than thirty days that plaintiff desired such refund; that on 16 June, 1933, the plaintiff made demand on defendant for the refund to him by the defendant of the sum of $96.00 for each of said 26 shares of the capital stock of the defendant; and that defendant has failed, neglected, and refused to pay to the plaintiff the sum of $2,496, in accordance with its agreement.

As his second cause of action, the plaintiff alleges that on 13 November, 1931, the defendant sold to the plaintiff 6 shares of its capital stock, at $98.00 per share, and upon the payment by the plaintiff to the defendant of the sum of $588.00, delivered to the plaintiff a certificate for said 6 shares of its capital stock; that said sale was made on defendant’s behalf by T. C. Connor, an agent and employee of the defendant, who was authorized by the defendant, as an inducement to plaintiff to purchase said shares of stock, to agree, and who did agree on behalf of the defendant, that the defendant would refund to the plaintiff the sum of $96.00 for each of said shares, upon notice to defendant of not less than ten or more than thirty days that plaintiff desired such refund; that on 16 June, 1933, the plaintiff made demand on defendant for the refund to him of the sum of $96.00 for each of said 6 shares of the capital stock of defendant; and that defendant has failed, neglected, and refused to pay to the plaintiff the sum of $576.00, in accordance with its agreement.

In its answer the defendant admitted that it sold to the plaintiff the shares of its capital stock, as alleged in the complaint; and that it delivered to the plaintiff certificates for said shares of stock; it denied, however, that it had authorized its agent and employee, T. C. Connor, to agree with the plaintiff that it would refund to the plaintiff any sum for said shares of capital stock, or that said T. O. Connor had agreed with the plaintiff that it would make such refund.

At the trial, T. C. Connor, as a witness for the plaintiff, testified that he procured from the plaintiff his subscriptions for the shares of its capital stock which the defendant sold to the plaintiff. He testified as follows:

“Mr. McDougald was mighty particular in asking me several questions about the stock. He wanted to know if he bought the stock how he could get his money back. I told him there were two ways for him to get his money back if he needed it — that he could go to a bank and borrow the money on his certificates, or that he could endorse the certificates and send them to the defendant — that the defendant would resell the stock, and charge him two dollars per share for making the sale. These were the terms on which I sold him the stock. I told him that the *766resale would be made by the Tide Water Power Company, and tbat tbe company would send Mm a check, less the commission for the resale. The defendant told me that it had a resale department.”

At the close of the evidence for the plaintiff, the defendant moved for judgment as of nonsuit. The motion was allowed, and plaintiff excepted.

From judgment dismissing the action as of nonsuit, the plaintiff appealed to the Supreme Court.

*Henry L. Williamson for plaintiff.*

*Yarser, McIntyre & Hemry- for defendant.*

CoNNOB, J.

There was no evidence at the trial of this action tending to show that defendant’s agent and employee, T. 0. Connor, was authorized by the defendant to agree on its behalf that the defendant would refund to the plaintiff any sum on account of the shares of its capital stock which the defendant sold to the plaintiff, or that said agent and employee made such agreement with the plaintiff, on behalf of the defendant. For this reason, there is no error in the judgment dismissing the action as of nonsuit, in accordance with defendant’s motion.

In this respect the instant case is distinguishable from *Byrd v. Tide Water Power Company,*205 N. C., 589, 172 S. E., 183, in which a judgment for the plaintiff was affirmed.

In view of the testimony of T. C. Connor, as a witness for the plaintiff in this action, plaintiff’s exception to the exclusion by the court of evidence tending to show the terms and conditions on which T. 0. Connor offered shares of the capital stock to other persons, need not be considered.

The judgment in this action is

Affirmed.

Devin, J., took no part in the consideration or decision of this case.