William Bradshaw, senior vice president and secretary of Citizens, maintained the list at times relevant to this action.
procedure for handling such transactions, as set forth in his
affidavit, was uncontroverted:
In late summer of 1992, plaintiff Richard Frazier contacted Bradshaw
about the possibility of selling some of the Citizens
, stock belonging to Frazier's daughter.
replied that he
was not aware of any merger negotiations.
Over the period from 23 September 1992 until 25 November 1992, plaintiffs sold all of their shares in Citizens
for prices ranging from $12.00 to $13.80 per share.
Before each transaction, Frazier inquired of Bradshaw
with respect to merger negotiations and was told that no such negotiations were taking place.
In addition, plaintiffs offered no direct evidence to show that defendants Lingafelt or defendants Balkcum had any knowledge of any of the representations made to Richard Frazier by Bradshaw
and McGee with respect to Citizens
' merger discussions.
In addition to the present suit, plaintiffs brought an action against Citizens
Their claims against Citizens
were settled under the terms of a Mutual Release and Settlement Agreement dated 22 June 1995.
Plaintiffs allege that, in misrepresenting the existence of merger negotiations, Bradshaw
was acting as defendants' agent.
A principal may be liable for a fraud committed by his
agent, "even though the principal did not know or authorize the commission of the fraudulent acts.
Norburn v . Mackie, 262 N.C. 16, 23, 136 S.E.2d 279, 284-85 (1964).
Plaintiffs have admitted, in responses to defendant Balkcums'
requests for admissions, not only that the Balkcums
committed no fraud and made no misrepresentation of any kind to plaintiffs in connection with their purchase of plaintiffs' stock, but also that Bradshaw
never acted as the Balkcums' agent in connection with the transaction.
The question remains as to whether Bradshaw can be found to have been acting as an agent for defendants Lingafelt so that his alleged fraud may be imputed to them.
No genuine issue of fact exists as to whether Bradshaw
had absolutely no involvement in the 25 November 1992 transactions, which were negotiated directly between Richard Frazier and David Lingafelt.
Plaintiffs have forecast no evidence which would support a finding that Bradshaw
was acting other than solely on behalf of Citizens
to facilitate the exchange of its stock and, therefore, have failed to show the existence of an essential element which would invalidate their express contracts to sell their stock to defendants Lingafelt and entitle them to pursue a claim of unjust enrichment.
and McGee, employees Of Citizens
Plaintiffs have not, however, alleged direct acts of wrongdoing by defendants Lingafelt, ; each of these claims is dependent upon the existence of an agency relationship between defendants Lingafelt and Bradshaw