A. Blanton Grocery Co. v. Taylor

• Decision Date: 22 May 1913
• Citation: 78 S.E. 276,162 N.C. 307
• Parties: A. BLANTON GROCERY CO. v. TAYLOR et al.
• Court: North Carolina Supreme Court

78 S.E. 276

162 N.C. 307

A. BLANTON GROCERY CO. v. TAYLOR et al.

Supreme Court of North Carolina

May 22, 1913

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

Action by the A. Blanton Grocery Company against J. W. Taylor and others. Judgment for plaintiff, and defendants appeal. New trial.

In an action to recover a stock of goods claimed under a chattel mortgage, where the issue as to whether after-acquired goods passed under the mortgage was material, instructions that it was to be determined by the greater weight of the evidence and in another part of the charge, that the evidence must be clear, strong, and convincing, were inconsistent and erroneous.

This is an action to recover a stock of goods; the plaintiffs claiming ownership under a chattel mortgage executed by the defendant J. W. Taylor on January 25, 1910, to secure a note of $100 due March 3, 1910, in the form prescribed by section 1039 of the Revisal. The defendants are J. W. Taylor and J C. Hampton; the latter claiming under a general assignment to secure creditors, executed to him by the said Taylor.

The plaintiffs alleged, among other things: "If as a matter of law the said mortgage does not cover all goods, without regard from whom purchased, subsequently added, up to the time of the satisfaction of the mortgage, then the same was incorrectly drawn by reason of a mutual mistake of both parties to said mortgage." The defendants denied this allegation, and also that there was anything due the plaintiffs, and the defendant Hampton further alleged "That the chattel mortgage described in the complaint was fraudulent, as well as void, as to the creditors of J. W Taylor, because it pretended to mortgage the stock of merchandise of the defendant J. W. Taylor, and allowing said defendant J. W. Taylor to sell the same without making provision for the application of the proceeds of sale of said stock of goods, and because the description in said chattel mortgage is not sufficient in law." The stock of goods was seized under proceedings in claim and delivery issued in the action and delivered to the plaintiffs, and sold by them under their mortgage, at which sale the goods were bought for the plaintiffs for $450.

The defendants tendered the following issue, among others: "Second. If so, was the mortgage fraudulent and void as against other creditors of the defendant J. W. Taylor?" The court refused to submit the issue, and the defendants excepted.

Prior to the trial the plaintiffs made a tender of judgment under section 860 of the Revisal for $395, with interest from March 24, 1911, and costs. The court permitted this tender to be offered in evidence, and the defendants excepted.

There was evidence on the part of the plaintiffs that the goods were not worth more than $450, but it was admitted that after the sale they sold them for $475, and there was evidence for the defendants that the goods were worth $800.

The verdict of the jury was as follows:

"(1) In what amount, if any, is J. W. Taylor indebted to plaintiffs? Answer: $78.29.

"(2) Was there a mutual mistake in drawing the chattel mortgage by which the provision that the mortgage should cover all the merchandise subsequently added to the stock was omitted, as alleged? Answer: Yes.

"(3) What was the value of the property taken by the plaintiffs at the time of the seizure? Answer: $462.50."

His honor charged the jury on the second issue: "The plaintiff contends that the parties agreed between themselves (that is, Taylor and Laughridge) that the mortgage should be so amended as to express that all goods, which might be in stock or hereafter bought (did not make any difference from whom the purchases were made), and that, having agreed upon that and understanding to put it in the mortgage, it was a mistake made by both Laughridge and Taylor in getting the expression necessary to convey the idea that the mortgage should be on goods which might hereafter be bought, not only from the Blanton Grocery Company, but from any other parties from whom he purchased. The burden is on the plaintiff to satisfy you by the greater weight of the evidence that such agreement was made and left out by mistake. In other words, that both parties understood what it was, and intended it should be so embraced by the mortgage, but, in failure to use proper words to convey their meaning as agreed upon, it was left out. They are not to satisfy you beyond a reasonable doubt, as in criminal cases, but by the greater weight of the evidence." Defendants excepted. And again: "When you come to the second issue, you will remember it is a rule of law that when people reduce their contract to writing the writing is presumed to express what they agreed upon, and the party who insists that something is left out of the writing which was agreed upon, by mutual mistake, is called upon to give to the court and jury a class of evidence which is clear within itself, and strong and convincing."

Judgment was entered upon the verdict, and the defendants excepted and appealed.

S. Gallert and McBrayer & McBrayer, all of Rutherfordton, for appellants.

Quinn, Hamrick & McRorie, of Rutherfordton, and J. W. Pless, of Marion, for appellee.

ALLEN J.

The issue of fraud is raised by the pleadings, and, if there was any evidence justifying an answer thereto favorable to the defendants, it was error to refuse to submit it. If we were dealing with any other class of property than a stock of goods, or if it was necessary in this case to prove a corrupt and fraudulent intent, we would hold there was no such evidence, as there is nothing in the evidence suggesting that the plaintiffs had any unlawful or wrong purpose, but the character of the property and the admitted facts are such that there arose a presumption of a legal fraud, which the plaintiffs were required to rebut.

In Cheatham v. Hawkins, 76 N.C. 335, the court says, in commenting upon a mortgage of a stock of goods: "To secure a debt the bargainor conveys in mortgage an entire stock of...