Ballew v. Sudderth

• Citation: 32 N.C. 176,10 Ired. 176
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 August 1849
• Parties: PETER BALLEW, ADM'R . v. ABRAHAM SUDDERTH.

10 Ired. 176

32 N.C. 176

PETER BALLEW, ADM'R .

v.ABRAHAM SUDDERTH.

Supreme Court of North Carolina.

August Term, 1849.

A. purchased a mare from B. and gave his note for the price. At the bottom of the note the following was appended: “It is agreed and understood, that a sorrel mare, for which the above note is given, is to remain the property of B. until the above note is fully paid.” A., without having paid the note, sold the mare to C.; Held, that A. had no right to sell and his vendee acquired no title.

The case of Gaither v. Teague, 4 Ire?? 65, cited and approved.

Appeal from the Superior Court of Law of Caldwell County, at the Spring Term 1849, his Honor Judge BAILEY presiding.

This was an action of trover for the conversion of a sorrel mare. The plaintiff gave in evidence a promissory note of one Andrew Cline for sixty dollars, dated March 1845?? and payable in carpenter's work, underneath which note the following was written: “It is agreed and understood, that a sorrel mare, for which the above note is given, is to remain the property of P. Ballew until said note is fully paid.” Signed by the plaintiff's intestate and the said Cline. The note has an endorsement of the payment of $11 50. The agreement was proved in the County Court of Caldwell and registered.

W. C. Loudermilk, the witness to the note and contract, was introduced as a witness on the trial by the plaintiff. He stated that he, Ballew and Cline, were together, that Ballew agreed to sell to Cline a sorrel mare, which he, Ballew, was then riding, for sixty dollars: that Cline was to give his note for the amount agreed upon, payable in carpenter's work, and upon a credit of six months; that Cline agreed to purchase the mare and was to give his note when they got to the next house; that, before the?? got to the house, Cline said he was indebted to one Warlick, and that he had rather Ballew should retain the title, to prevent the mare being sold by this creditor; that Ballew said nothing; that, when they got to the house, the note and paper writing above set forth were executed by them; that there was no delivery of the mare at this time, but shortly afterwards he saw the mare in the possession of Cline. The witness also stated, that Ballew was to employ a carpenter to superintend the work, and Cline was to work under him. It was furthermore in proof, that Cline sold the horse to the defendant in November or December, 1845, for twenty dollars, and that the plaintiff demanded the horse of the defendant, before suit was brought, and he refused to deliver him.

The defendant introduced a witness, who stated, that he heard Cline tell Peter Ballew, that he had some work on hand at that time, that he should finish it in a few days and he would then be ready for his work, that Ballew replied, very well, he was getting his lumber, and would by and by get ready. Another witness also stated, that Cline worked with him, that he commenced work in June 1845, and that Ballew came to his house and mentioned to him, that Cline owed him some money, and wanted to know if he could get any thing out of him; that Cline was to work for him, but he was not ready for him at that time; that in February 1846, Cline went off to Georgia and remained about six weeks; that, after his return, he saw Ballew, who stated that Cline owed him, and that he wished him, the witness, to employ Cline and retain his wages for him, Ballew; that it would prevent a difficulty with the witness' brother, the present defendant, who had purchased the mare from Cline; that Cline had been to see him for the...