Another v. Others

• Citation: 3 S.E. 716,08 N.C. 97
• Court: North Carolina Supreme Court
• Decision Date: 07 November 1887
• Parties: CoIIen and another v. Stewart and others.

3 S.E. 716

08 N.C. 97

CoIIen and another

v.Stewart and others.

Supreme Court of North Carolina.

November 7, 1887.

Sale—What Constitutes—Mortgage—Identification of Property.

One of the defendants was indebted to plaintiff. In settlement of part of his account defendant executed to plaintiff a bill of sale of wood lying on a given railroad, at a stated rate, in consideration of one dollar paid, and the amount realized on the wood when sold, to be placed to defendant's credit. Defendant afterwards conveyed to his co-defendant, by assignment, part of this wood. Held, that the first transaction did not merely constitute a mortgage, but a sale to the plaintiff, — the wood being sufficiently identified to make an absolute sale without actual delivery; and that by the assignment the co-defendant acquired no title.

Appeal from Nash county; J. H. Merrimon, Judge.

Mullen & Daniel, for plaintiffs. Bunn & Battle, for defendants.

Merrimon, J. This action was brought to recover the value of certain wood mentioned in the complaint. It is alleged that the plaintiffs purchased the wood from the defendant Stewart, and that the latter afterwards undertook, by deed of assignment, to sell the same to the defendant W. H. White-head, in trust, to resell the same, and with the proceeds of sale pay sundry debts of Stewart in the deed mentioned.

By consent of the parties a referee found the facts of the matter in contro-versy, and the case was submitted to the court upon the facts found, as follows:

(1) In April, 1886, and prior thereto, M. Cohen and Charles Cohen, the plaintiffs, were doing business and trading under the firm name and style of M. Cohen & Son, in the city of Petersburg, state of Virginia. The defendant Stewart was trading and doing business at Battleboro, state of North Carolina, and had for some time past been dealing and trading with the plaintiffs.

(2) That on the twenty-first day of April, 1886, the defendant Stuart was indebted to the plaintiffs for goods, wares, and merchandise sold and delivered to him in a large sum, to-wit, more than $600. On April 21, 1886, said Stewart visited plaintiffs' place of business in Petersburg, and saw Charles Cohen, above named; his object in the visit being to buy more goods of plaintiffs. At that time plaintiffs believed Stewart to be solvent.

(3) Stewart's account with plaintiffs was so large, they refused to sell him more goods unless he paid something on the account he then owed. Said he had no money; and was asked to give real-estate security, which he refused. He stated he had no money then, but expected to get some money so soon as he sold some wood and tobacco he had; that he had, and was expecting to sell, a lot of wood, which was on the line of the Wilmington & Weldon Railroad.

(1) The Wilmington & Weldon Railroad is a section of the Atlantic coastline Railroad, and that Battleboro and Rocky Mount, North Carolina, are neighboring stations on said section.

(5) That he expected to sell the wood soon, and get some money. Plaintiffs replied, "This is too uncertain and indefinite;" and Stewart then proposed to give them a bill of sale for the wood and some tobacco. Plaintiffs accepted the offer, and the following bill of sale was then executed in their favor by Stewart, to-wit: "Battleboro, N. C, April 22, 1886.

" Messrs. M. Cohen & Son, of Petersburg, Va., bought of Joseph P. Stewart, of Battleboro, N. C, 500 cords of railroad wood at $1.25, $625, lying on the Atlantic Coast-Line Railroad, between Battleboro, N. C, and Rocky Mount, upon which there is no incumbrance whatever. In consideration of one dollar to me paid by M. Cohen & Son, I sell and convey the above-named lot of wood to M. Cohen & Son, the amount of which is to be placed to the credit of my account with M. Cohen & Son, when M. Cohen & Son shall have sold the same and realized the money from the same. Jos. P. Stewart."

A similar bill of sale for the tobacco was executed, except no price was named.

(6) That the plaintiffs, after the bill of sale was executed, entered a credit on their books of 500 cords of wood, more or less, at $1.25 per cord, with postscript added referring to the bill of sale. No receipt was given to Stewart for the wood.

(7) The wood mentioned was all the wood owned by Stewart on the line of said railroad; that the wood was on the said railroad line between Battleboro and Rocky Mount, and being placed there to sell to the railroad company, and was distant from Petersburg about 100 miles.

(8) The wood was tagged or marked in Stewart's name, and remained so. Wood of this grade was worth from $1.50 to $1.60 per cord, and sometimes, to effect a sale, less was taken for it. The wood remained just as it was at the execution of the bill of sale. It was agreed that Stewart might sell the wood for and on account of plaintiffs, and they would try to sell it at the same time.

(9) Plaintiffs endeavored soon after bill of sale was executed to sell the wood to the railroad company, but did not effect a sale. Stewart did sell about 60 cords of the wood to the railroad company, and sent to plaintiffs the wood check he received in payment for same. He remitted same, to be placed to his credit. He gave plaintiffs no notice of the sale.

(10) That some time afterwards Stewart made a deed of assignment to his co-defendant Whitehead, which was duly recorded; that defendant Whitehead, shortly after said assignment was made to him, took possession of said wood, being advised that it was embraced in the deed of assignment; that plaintiffs, so soon as they were informed that Whitehead claimed said wood under the assignment, notified him that the wood was their...