Brimmer v. M.H. Brimmer Co.

• Decision Date: 31 October 1917
• Docket Number: 294.
• Citation: 93 S.E. 984,174 N.C. 435
• Parties: BRIMMER v. M. H. BRIMMER CO.
• Court: North Carolina Supreme Court

93 S.E. 984

174 N.C. 435

BRIMMER v. M. H. BRIMMER CO.

No. 294.

Supreme Court of North Carolina

October 31, 1917

Appeal from Superior Court, New Hanover County; Justice, Judge.

Action by M. H. Brimmer against the M. H. Brimmer Company. C. C Bellamy was appointed temporary receiver, and brings action against the Schloss-Bear-Davis Company. Judgment for the receiver and defendant appeals. New trial.

Although agent has no authority to do a certain act principal is responsible if he ratifies agent's act.

This is a petition filed by the receiver of the M. H. Brimmer Company against the Schloss-Bear-Davis Company to recover a certain dead wagon or the proceeds thereof. The Brimmer Company was in business as an undertaker, and it was admitted that it bought the wagon, which was in possession of the Davis Company at the commencement of the action, the Davis Company claiming that it had been pledged as a security for debt by M. H. Brimmer, general manager of the Brimmer Company. The receiver denied that the wagon was left with the Davis Company as a pledge, and also denied that Brimmer had any authority to pledge the wagon. Both parties introduced evidence in support of their respective claims.

The receiver introduced the deposition of M. H. Brimmer, who among other things, was permitted to answer the following question:

Q. State in full the circumstances of your placing the dead wagon in the livery stables of Schloss, Bear & Davis Company.

The deposition and the answer to the question were objected to by the defendant, and exception duly taken to their admission.

The plaintiff also introduced as a witness L. W. Moore, president of the Brimmer Company, who was asked the following questions by the defendant on cross-examination:

Q. How much did your concern owe when it went into the hands of a receiver? (Objection by plaintiff. Objection sustained. Defendant excepted.) Q. I ask you if it was not hopelessly insolvent? (Objection by plaintiff. Objection sustained. Defendant excepted.) Q. I will ask you if you had enough assets in your concern when it went into the hands of a receiver to pay two cents on the dollar? (Objection by plaintiff. Objection sustained. Defendant excepted.)

The following is the verdict returned on the minutes:

(1) Did M. H. Brimmer, manager of M. H. Brimmer Company deliver said dead wagon to Schloss-Bear-Davis Company, and pledge it to be security for what was due them by said Brimmer Company? Ans. Yes.

(2) What sum is due to Schloss-Bear-Davis Company by said M. H Brimmer Company? Ans. $548.75.

(3) Was said Brimmer, manager, authorized by directors of said company to pledge its property or any part of same to secure payment of debt to Schloss-Bear-Davis Company? Ans. No.

(4) Is petitioner C. C. Bellamy, receiver, entitled to money for which said dead wagon was sold, by agreement, leaving said money to stand in the place of said wagon? Ans. Yes.

Judgment was rendered in favor of the receiver upon the verdict and the defendant appealed, assigning the following errors:

First. The court erred in overruling the defendant's objection to the introduction of the deposition of M. H. Brimmer, as set out in the first exception.

Second. The court erred in overruling the defendant's objection to the question: State in full the circumstances of your placing the dead wagon in the livery stable of Schloss, Bear & Davis Company, as set out in the second exception.

Third. The court erred in sustaining the objection of the plaintiff to the question: How much did your concern owe when it went into the hands of a receiver? as set out in the third exception.

Fourth. The court erred in sustaining the objection of the plaintiff to the question: I ask you if it was not hopelessly insolvent, as set out in the fourth exception.

Fifth. The court erred in sustaining the objection of the plaintiff to the question: I will ask you if you had enough assets in your concern when it went into the hands of a receiver to pay two cents on the dollar, as set out in the fifth exception.

Sixth. The court erred in overruling the defendant's motion for nonsuit, as set out in the sixth exception.

Seventh. The court erred in signing the judgment set out in the record and in holding that the Schloss-Bear & Davis Company did not hold a lien upon the dead wagon, as set out in the seventh exception.

McClammy & Burgwin, of Wilmington, for appellant.

ALLEN J.

It is not necessary to consider the first and second assignments of error because the deposition of M. H. Brimmer has no bearing upon any issue except the first, which was answered in favor of the defendant.

The third, fourth, and fifth assignments of error are without merit. The record does not show what would have been the answer of the witness to the questions propounded to him, but, if we assume that the purpose was to show the insolvency of the Brimmer Company, this was not relevant to any issue before the jury, and it was not in controversy, because the record shows that the petitioner was appointed receiver on account of insolvency.

The motion for judgment of nonsuit was properly overruled, as it was admitted that the Brimmer Company had bought the wagon and that it was the owner, unless the defendant could establish that it had been left in its possession as a pledge, and the burden was on the defendant, as his honor charged, to satisfy the jury of the facts upon which it relied to show that it was entitled to retain the wagon or its proceeds.

The seventh assignment presents the question as to whether the verdict is sufficient to support the judgment, and there can be no doubt that the answer to the fourth issue, standing alone, justified his honor in holding that the receiver was entitled to the proceeds of the sale of the wagon, as it so finds in no uncertain language.

It appears, however, that the fourth issue was not answered by the jury, and that, on the contrary, his honor submitted only the first issue to the jury, and reserved the others to be answered by himself as matters of law, and as there was no...