#### E. A. BUCKNER v. C. I. T. CORPORATION.

(Filed 21 May, 1930.)

1. Principal and Agent A d: Trial B b — Introduction of receipt reciting agency before proof of agency held not error in this case.

The declarations of an'alleged agent are incompetent to prove agency, but the order in which evidence may be introduced is a matter within the discretion of the trial court unless it is obvious that prejudice may result, and where the plaintiff introduces a receipt from the alleged agent containing a recital of the agency, and evidence of the agency is later offered without objection: *Held,*the defendant was not prejudiced by the order of the introduction of the evidence, and his exception based thereon will not be sustained on appeal.

2. Principal and Agent A d — Evidence in this case held sufficient to establish prima facie fact of agency.

Where there is evidence that an alleged agent has repeatedly collected money upon debts owed to the alleged principal, the inference is permissible that an agreement to-this effect has been made, and the evidence is sufficient to make out a prima facie case of agency *aliunde*the declaration of the agent.

Appeal by defendant from *Harris, J.,*at Special September Term, 1929, of BuNcombe.

In December, 1928, the plaintiff bought a Whippet sedan from Ashe-ville Overland-Knight, Inc., at the price of $803.16. He paid $243, and gave the seller his note for $560.16, payable in twelve equal installments of $46.68, together with a retained title contract. On 19 January, 1929, he paid the seller the amount due and took a receipt therefor, which recited payment for the O. I. T. Corporation. The seller (Asheville-Overland-Knight, Inc.), thereafter made an assignment for the benefit of its creditors to the Wachovia Bank and Trust Company. The defendant claims to be a holder of the note and contract in due course.'

The following verdict was returned:

1. Was the Asheville Overland-Knight, Inc., the agent for the purpose of collecting money for the O. I. T. Corporation on 19 January, 1929?

Answer: Yes.

2. Did the Asheville Overland-Knight, Inc., receive from E. A. Buckner on 19 January, 1929, the sum of $540 as the agent for the O. I. T. Corporation ?

Answer: Yes.

Judgment for plaintiff and appeal by defendant.

*Harkins é Van Winkle for appellant.*

*699Adams, J".

Tbe plaintiff recovered a judgment for tbe cancellation of bis note and of tbe retained title contract and for tbe delivery to bim of tbe unencumbered title to tbe sedan. It therefore becomes necessary to determine whether tbe appllant’s exceptions present good cause for a new trial or a reversal or modification of tbe judgment.

Tbe receipt referred to in tbe statement of facts recites tbe plaintiff’s payment to Asheville Overland-Knight, Inc., of $540 “for C. I. T.' Corporation.” Tbe appellant excepted for tbe assigned reason that this recital is a declaration of agency made by tbe agent and was inadmissible at least until agency bad been established prima facie by other evidence. Tbe declarations of an alleged agent, whether written or verbal, are, of course, incompetent to prove agency. *Realty Co. v. Rumbough,*172 N. C., 741; *Arndt v. Insurance Co.,*176 N. C., 652. But tbe order in which evidence may be introduced is a matter within tbe discretion of tbe judge unless it is obvious that prejudice may result; and as evidence of agency was afterwards offered without objection, we do not see bow tbe defendant was prejudiced by tbe receipt. Tbe fourth exception presents tbe same question.

Several exceptions were taken to evidence tending to show that for some years Asheville Overland-Knight, Inc., bad regularly collected money from its customers for tbe defendant. From tbe testimony it was permissible to draw tbe conclusion that an agreement to this effect bad been made by tbe two companies and that Asheville Overland-Knight, Inc., was, as tbe plaintiff contended, an agent for tbe collection of tbe note assigned by it to tbe defendant.

We find no error in tbe court’s refusal to dismiss tbe action or in tbe instruction given tbe jury. All tbe evidence for tbe plaintiff tended to show agency, and tbe only evidence introduced by tbe defendant was tbe retained title contract and certain paragraphs in tbe pleadings.

No error.