Bundy v. Commercial Credit Co, No. 475.

Docket NºNo. 475.
Citation202 N. C. 604, 163 S.E. 676
Case DateApril 13, 1932
CourtUnited States State Supreme Court of North Carolina

163 S.E. 676
202 N. C. 604

BUNDY.
v.
COMMERCIAL CREDIT CO.

No. 475.

Supreme Court of North Carolina.

April 13, 1932.


[163 S.E. 676]

Appeal from Superior Court, Mecklenburg County; Schenck, Judge.

Action by C. W. Bundy, receiver of the Triplett Lumber Company, against the Commercial Credit Company. From the judgment, both parties appeal.

No error as to plaintiff's appeal. Error as to defendant's appeal.

See, also, 198 N. C. 339, 151 S. E. 626.

This cause was considered by the court in. a former appeal, reported in 200 N. C. 511, 157 S. E. 860. The facts are substantially the same, and no extended restatement of them will be attempted upon this appeal.

The issues submitted were as follows:

1. "Was the contract between the Commercial Credit Company and the Triplett Lumber Company (Exhibit No. 1) lastly executed in the State of Maryland, as alleged in the answer I"

2. "If so, was said contract (Exhibit No. 1) executed by the defendant, Commercial Credit Company, in the State of Maryland in bad faith with the intent and purpose of evading the usury laws of North Carolina?"

3. "Did the defendant, Commercial Credit Company, knowingly take, receive, reserve, or charge the Triplett Lumber Company a greater rate of interest than 6 per cent per annum, as alleged in the amendment to the complaint?"

4. "What amount of penalty, if any, is the plaintiff, C. W. Bundy, Receiver for the Triplett Lumber Company, entitled to recover of the defendant, Commercial Credit Company, for usurious interest paid?"

5. "What amount is the Triplett Lumber Company, Indebted to the defendant, Commercial Credit Company?"

The jury answered the first issue "Yes, " the second issue "No, " and the fifth issue "$11,942.70."

Thereupon, judgment was entered decreeing (a) that the plaintiff, receiver, is the owner of the accounts in controversy "free and clear of any lien or claim of the defendant"; (b) that the defendant, credit company, is entitled to file an unsecured claim against the receiver for the sum of $11,942.70; (c) that the plaintiff is not entitled to recover anything of the defendant upon the allegations of usury; (d) that the costs be paid by the plaintiff.

From the judgment so rendered both parties appealed, assigning errors.

[163 S.E. 677]

John M. Robinson and Hunter M. Jones, both of Charlotte, for plaintiff.

Duane R. Dills and Jack J. Levinson, both of New York City, and J. Laurence Jones and J. L. De Laney, both of Charlotte, for defendant.

BROGDEN, J.

The determinative questions presented by the record may be stated as follows:

1. Did the trial judge correctly instruct the jury upon the second issue?

2. Was the defendant, credit company, entitled to a lien upon the proceeds realized from the collection of accounts and evidences of indebtedness described in the exhibit?

3. Did the trial judge properly tax the costs?

The second issue is as follows: "Was said contract executed by the defendant, Commercial Credit Company, in the State of Maryland in bad faith with the intent and purpose of evading the usury laws of North Carolina?" Upon said issue the judge instructed the jury as follows: (1) "Now, gentlemen of the jury, you will note that the conjunction 'and' 'is used, and not the alternative 'or, ' and the issue raises the query whether the action was in bad faith and with the intent to evade the usury laws of North Carolina." (2) "If upon consideration of all the evidence it has satisfied you, by its greater weight, that in so doing the Credit Company did act in bad faith and did act with the intent and purpose of evading the usury laws of North Carolina, then, gentlemen of the jury, it will be your duty to answer the second issue 'Yes' as contended for by the plaintiff." (3) "In this connection the court repeats that the phrase 'in bad faith' imports that the transaction involved was dishonestly conceived and consummated with knowledge of a fraudulent design or deception. The term 'in bad faith' means to mislead and deceive, and before the plaintiff can successfully ask you to answer this issue 'Yes, ' the plaintiff must satisfy you, by the greater weight of the evidence, that the defendant, Commercial Credit Company, had the intent to deceive the Triplett Lumber Company in the execution of the contract in Maryland, and also that the transaction was dishonestly conceived." (4) "The court charges you that the phrase in 'bad faith, ' as used in this second issue, imports that the transaction involved was dishonestly conceived and consummated with knowledge of a fraudulent design or deception. The term 'bad faith' also means 'with intent to mislead or deceive another.' "

The attack made by the plaintiff upon the foregoing instructions is grounded upon the contention that bad faith was improperly denned. The general definition given in Black's Law Dictionary, 2d...

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17 practice notes
  • Spiegel v. Beacon Participations, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 14, 1937
    ...(C.C.A.) 250 F. 321, 325;Hilker v. Western Automobile Ins. Co., 204 Wis. 1, 13, 231 N.W. 257,235 N.W. 413;Bundy v. Commercial Credit Co., 202 N.C. 604, 607, 163 S.E. 676;Hilgenberg v. Northup, 134 Ind. 92, 94, 33 N.E. 786. It was said by Taft, J., in Penn Mutual Life Ins. Co. v. Mechanics' ......
  • Spiegel v. Beacon Participations
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 10, 1937
    ...Browning v. Fidelity Trust Co. 250 F. 321, 325. Hilker v. Western Automobile Ins. Co. 204 Wis. 1, 13. Bundy v. Commercial Credit Co. 202 N.C. 604, 607. Hilgenberg v. Northup, 134 Ind. 92, 94. It was said by Taft, J., in Penn Mutual Life Ins. Co. v. Mechanics' Savings Bank & Trust Co. 73......
  • National Mortg. Corp. v. American Title Ins. Co., No. 7815SC587
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • June 19, 1979
    ...to be given the phrase "good faith" in contradistinction to "bad faith". The Court in Bundy v. Credit Co., 202 N.C. 604, 163 S.E. 676 (1932), in the process of reviewing a jury instruction defining "in bad faith", offered the following explanation of the phrase......
  • Wightman v. American Nat. Bank of Riverton, No. 4949
    • United States
    • United States State Supreme Court of Wyoming
    • May 5, 1980
    ...White v. Platt, 5 Denio 269 (N.Y.1848); Hickok v. Cowperthwait, 210 N.Y. 137, 103 N.E. 1111 (1913); Bundy v. Commercial Credit Co., 202 N.C. 604, 163 S.E. 676 (1932); and Restatement of the Law of Security, § 11, p. 38, and § 16, p. 62 (A.L.I.1941). See Manufacturers Acceptance Corporation ......
  • Request a trial to view additional results
17 cases
  • Spiegel v. Beacon Participations, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 14, 1937
    ...(C.C.A.) 250 F. 321, 325;Hilker v. Western Automobile Ins. Co., 204 Wis. 1, 13, 231 N.W. 257,235 N.W. 413;Bundy v. Commercial Credit Co., 202 N.C. 604, 607, 163 S.E. 676;Hilgenberg v. Northup, 134 Ind. 92, 94, 33 N.E. 786. It was said by Taft, J., in Penn Mutual Life Ins. Co. v. Mechanics' ......
  • Spiegel v. Beacon Participations
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 10, 1937
    ...Browning v. Fidelity Trust Co. 250 F. 321, 325. Hilker v. Western Automobile Ins. Co. 204 Wis. 1, 13. Bundy v. Commercial Credit Co. 202 N.C. 604, 607. Hilgenberg v. Northup, 134 Ind. 92, 94. It was said by Taft, J., in Penn Mutual Life Ins. Co. v. Mechanics' Savings Bank & Trust Co. 73 F. ......
  • National Mortg. Corp. v. American Title Ins. Co., No. 7815SC587
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • June 19, 1979
    ...upon the correct interpretation to be given the phrase "good faith" in contradistinction to "bad faith". The Court in Bundy v. Credit Co., 202 N.C. 604, 163 S.E. 676 (1932), in the process of reviewing a jury instruction defining "in bad faith", offered the following explanation of the phra......
  • Wightman v. American Nat. Bank of Riverton, No. 4949
    • United States
    • United States State Supreme Court of Wyoming
    • May 5, 1980
    ...White v. Platt, 5 Denio 269 (N.Y.1848); Hickok v. Cowperthwait, 210 N.Y. 137, 103 N.E. 1111 (1913); Bundy v. Commercial Credit Co., 202 N.C. 604, 163 S.E. 676 (1932); and Restatement of the Law of Security, § 11, p. 38, and § 16, p. 62 (A.L.I.1941). See Manufacturers Acceptance Corporation ......
  • Request a trial to view additional results

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