Babcock Printing Press Mfg. Co v. Herbert

• Decision Date: 19 December 1904
• Citation: 49 S.E. 349,137 N.C. 317
• Court: North Carolina Supreme Court
• Parties: BABCOCK PRINTING PRESS MFG. CO. v. HERBERT et al.

49 S.E. 349

137 N.C. 317

BABCOCK PRINTING PRESS MFG. CO.

v.HERBERT et al.

Supreme Court of North Carolina.

Dec. 19, 1904.

replevin — innocent purchaser — payment op value—evidence—declarations of decedent —admissibility—supreme court — power to render judgment.

1. Code, § 957, requiring the Supreme Court to render such judgment as, on inspection of the whole record, it shall appear ought to be rendered, is not applicable to effect a reversal of a judgment for defendant as against the evidence, where the objection that there was no evidence was not raised before verdict by a prayer for instructions to the jury.

2. In an action to recover possession of a printing press sold by plaintiff by conditional sale, which passed into the hands of a publishing company as an alleged innocent purchaser, declarations of the deceased buyer are inadmissible to show that he received value from the publishing company.

3. In order to show that a person was a purchaser for value, a fair consideration must be shown, and payment of a price which would not cause surprise; and, where payment is alleged to have been made in the stock of a corporation, its condition when the stock was issued to the purchaser is material.

Appeal from Superior Court, Lenoir County; Ferguson, Judge.

Action by the Babcock Printing Press Manufacturing Company against W. M. Herbert, administrator of the estate of W. S. Herbert, deceased, and another. From a judgment for defendants, plaintiff appeals. Reversed.

W. D. Pollock, for appellant.

Loftin & Varser and Land & Cowper, for appellees.

WALKER, J. This is an action for the recovery of personal property, to wit, a printing press and its fixtures. So far as we are able to gather the facts from the record, it appears that the plaintiff, a corporation, and the manufacturer of the press, claims title to the same and the right of possession by virtue of a contract with one W. S. Herbert, now deceased; the agreement being described in the case as a "contract of conditional sale." This contract was dated March 26, 1902, and was filed for registration July 24, 1902. No copy of it is set out in the record, and we are not informed as to its contents. It was introduced merely by the general description we have already given. The plaintiff introduced in evidence a series of notes dated July 19, 1902; a copy of one of the series of notes being set out in the case. It refers to the contract of March 26th, and recites that it was given "pursuant to the agreement." The defendant claims the title and right to the possession of the press as receiver of the Kinston Publishing Company, to which company he alleges it was sold and transferred after the date of the contract of conditional sale between the plaintiff and Herbert, and before the date of its registration. It is also alleged by the receiver that the Kinston Publishing Company purchased the press for value, and without notice, in law, of the contract of conditional sale. There was much testimony introduced by the parties upon the question of the purchase of the press by the publishing company, and of the price paid for it. The jury returned a verdict in favor of the defendant. It is stated in the "case" that "the court charged the jury fully on every phase of the case, and gave the contentions of both sides. There was no exception taken to the charge." There are no assignments of error.

While, it may be that the conditional sale had not been consummated by the delivery to the plaintiff of the notes for the purchase price, and that there was merely an executory contract to sell, and that, at the time it is alleged the publishing company bought, W. S. Herbert had no title to the press to sell, as contended by the plaintiffs counsel, we cannot consider or decide the question, as there is no exception in the record which raises it. If the plaintiff had asked for an instruction to the jury based upon the contract and the evidence as to the time of giving the notes, and had caused to be set forth in the case a copy of the contract, so that we might determine its nature and legal effect with reference to the time of the delivery of the notes, the proposition argued at length in the brief of the counsel would be before us. But there was no prayer for instructions either as to the plaintiff's or the defendant's evidence and no exception to the charge. There is therefore nothing to consider in respect to the charge or the failure to...