(204) This was an action to recover $130, with interest from December, 1847. The plaintiff declared in assumpsit in several counts: 1. Specialty on the case. 2. As agent of the defendant upon a contract of indemnity. 3. For money paid to the use and at the request of the defendant. 4. As between debtor and creditor for money laid out and expended at the instance and for the use and benefit of the defendant.
In the progress of the trial it was proposed to read depositions taken on 5 and 6 January, 1849. Their admissibility was objected to on the ground that the notice of place was not specific enough. The objection was overruled. In the deposition of John W. Mathews he states that he saw Irions pay Blackwell the sum of $130; and it was explained at the time of the payment, in conversation between them, to be for the rent of the land, taken for the defendant's use. This conversation was objected to, but overruled. The proofs are in depositions and letters.
The defendant contended: 1. That the agent had no authority to obtain the land upon his own credit; and making a contract of this sort and paying the money without request could not give him a right of action. 2. That the plaintiff could not at any rate sue without a previous notice of the demand.
The court instructed the jury, if the defendant gave Irions *Page 155 general instructions to rent the land in question for him, without directing in what particular manner it should be done, and it became necessary, in order to attain the object, for the agent to make himself primarily responsible, it was within the range of his power to do so. And this he might do as well in case where his principal was known to the other as where he was unknown. And if the agent, Irions, contracted as above supposed, or by his own credit, for the land, and kept it for his principal during the year, and has paid the rent according to contract, he is entitled to recover it back, with interest. And no notice of the demand or of suit is requisite in such case previous to action. (205)
LOUISBURG, N.C. 11 January, 1846.
MR. JONES: Your letter of the 25th came to hand last night. I was glad to hear from you and your family. I got home the 20th of last month, but would have got home sooner, if I had come straight on. I stopped nine days at my brother's, in Georgia, and left him anxious for me to stay longer with him, but could not. I have bought you a blacksmith. They tell me he is a good one. He is about twenty-five years old. If you will take him, you can get him for $800; and if you don't want him, my brother will take him at that price. You may have refusal. I don't know when I shall start to Tennessee, but will come as soon as I can. If you don't see me by 1 March, I shall be there by the first of the fall. Tell Mr. Irions I am much obliged to him for his kindness to me, as I did not know but what I came up to my promise. If I don't get to Tennessee before the fall, I shall want the place he has rented for me. Tell him not to let it go, as I shall want it. My father's health is very bad at this time, but I think it will be so I can take him out next fall, etc.
JOHN COOK.
To THOMAS C. JONES. Several exceptions were taken by the defendant to the competency of the evidence offered by the plaintiff and admitted by the court. The first is as to the admissibility of the depositions — the notice under which they were taken being, as insisted, not sufficiently explicit. Without passing any opinion upon the point raised, it is sufficient that there was a cross-examination by the defendant. As the object in giving notice is to enable the party to prepare for the examination (206) and to attend if he thinks proper, if he does attend and cross-examine the witness, a waiver of the notice is to be *Page 156 presumed, and the deposition is well taken without showing any notice — the very object of giving it is attained. Beasley v. Downey, 32 N.C. 286.
The next exception is as to the conversation between Irions, the plaintiff, and Blackwell, the person from whom the land was rented, which was made at the time the rent was paid. The plaintiff took a receipt from Blackwell for the money, the parties then stating for what it was given. It is a familiar rule of law that declarations made by a party at the time a particular transaction takes place are pars rei gestae, a part of the transaction, as explanatory of it. It is true, parol evidence cannot be received to vary or alter a written contract; but this is a receipt, and may be explained by other testimony, because the law does not consider the writing as the best evidence of the transaction to which it relates. 3 Phil. Evidence, 1475, in notes. Now, the parol evidence was given, perhaps unnecessarily, to explain why and for what purpose the money was paid by the plaintiff. The declarations were properly received.
The defendant contends that the agent had no authority to obtain the land upon his own credit, and that making a contract of this kind and paying the money, without request, could not give a right of action; and, second, that the plaintiff could not, at any rate, sue without a previous notice of the demand. Neither of the objections can avail the plaintiff, under the facts stated in the case. It is a sound principle that one man cannot, by paying a debt of another, without his request, make him his own debtor, and thereby entitle himself to an action against him. But that principle has no application here. The plaintiff was not acting officiously, either in binding himself or paying the money. The exception concedes that the plaintiff was (207) the agent of the defendant. The case shows he was his special agent, to do a particular thing, with unlimited powers as to the mode and manner of doing it. His instructions were to rent that particular piece of land at the price of $120; but if he could not get it for that, to give Blackwell his price. Such an agency is sometimes called a general agency. Story on Agencies, sec. 18. Were the means used by the defendant unusual, in making such a contract as he did make? Was there anything in the instructions received by him which forbade the use of such means? The object of the defendant was to rent that piece of land, and the plaintiff was instructed to give the lessor his price. But Blackwell would not take the defendant as his debtor, but insisted that the plaintiff himself should become bound. He did so; and without it the lease would not have been made. Under such circumstances the plaintiff *Page 157 had the right to bind himself to pay the rent. In doing so he only bound himself as far as the defendant, his principal, would, as a lessor, have been bound. The case further discloses that the defendant was apprised by the plaintiff of his having rented the land, and the defendant approved of it and directed him not to give it up. If the plaintiff had a right in executing this agency to bind himself, then it follows as a necessary consequence that when he paid the rent the money was paid to the use of the defendant, and he is bound to repay it. Mr. Story, in his treatise on Agency, sec. 335, states that an agent has a right to be reimbursed all his advances, expenses and disbursements made in the course of his agency on account of and for the benefit of his principal, and which grow out of the employment and are incident to it. The direction to give Blackwell his own price was an express request to use his own funds or credit to effect this object; and it does not appear that Irions had any funds of the defendant in his hands. But whether the authority was express or not, from the nature (208) of the agency it was implied. If the lessor had insisted that the rent should be paid in advance, his instructions would have authorized the plaintiff to pay it, and he should have had a clear right of action against the defendant.
It is further urged by the defendant that he was a guarantor, and, as such, was entitled to notice of the payment of the money by the plaintiff before the action was brought. In the transaction there is no feature of a guaranty. That is a contract, ordinarily, of suretyship. With whom did the defendant, in this case form the contract? Not with Blackwell, the lessor, for he knew when he let the land that the plaintiff was the agent of the defendant, and he expressly refused to trust his responsibility, but insisted on that of the plaintiff. It was upon his credit the contract was made, and to him alone did he look for his rent. With the plaintiff no such contract was made or implied, except such as arises in every case where one man pays money for another, at his request, and in such cases no notice is required of the payment of the money. This is very similar to the case where a bill is accepted for the honor of the drawee and the acceptor pays the money; the law implies a request on the part of the drawee. In the argument, Grice v. Rix, 14 N.C. 64, was cited. It has no application. The Court there decide that where the liability of a party is not direct, but collateral, and dependent upon the default of another, he must be notified of the default before he can be charged. Here the liability of the defendant is direct and not collateral, and the only default was his own, in not paying the rent at the end of the *Page 158 year or furnishing the plaintiff with funds to do so; and this knowledge of the default was, to him, notice sufficient.
A number of depositions, notices and letters were made parts of the case. We must be permitted to suggest that this (209) practice is inconvenient and expensive to the parties. So many of the depositions or notices as may be necessary to present the point to the Court are required, and no more ought to be incorporated into the case. In this case the clerk has not only sent the originals, but also copies; for what purpose we cannot tell.
PER CURIAM. Judgment affirmed. *Page 159