Carrow v. Weston

• Decision Date: 26 February 1958
• Docket Number: No. 21,21
• Citation: 102 S.E.2d 134,247 N.C. 735
• Court: North Carolina Supreme Court
• Parties: L. T. CARROW v. Elizabeth C. WESTON, Administratrix of the Estate of F.E. Weston, Deceased.

Page 134

102 S.E.2d 134

247 N.C. 735

L. T. CARROW v. Elizabeth C. WESTON, Administratrix of the Estate of F.E Weston, Deceased.

No. 21

Supreme Court of North Carolina.

Feb. 26, 1958

Peel & Peel, Williamston, for defendantappellant.

R. L. Coburn, Williamston, for plaintiff-appellee.

BOBBITT, Justice.

In his complaint, also in the 'itemized and verified claim' theretofore filed with the administratrix, plaintiff asserted a right to recover the total of the two worthless checks, to wit, $471.97, being the amount Weston agreed to pay as purchase price for the logs; and plaintiff's action is to establish that his claim for $471.97 is a preferred claim against the estate.

The court's legal conclusions were: (1) that 'no title passed to * * * Weston by reason of the delivery of the logs to him * * *'; (2) that 'the ualue of said logs in the possession of * * * Weston or his administratrix * * * constitutes a trust fund' for the benefit of plaintiff and 'is now so held by said Administratrix'; and (3) that 'said fund is not a part of the estate of * * * Weston, in that it is not subject to the payment of debts and costs of administration.' (Our italics.)

The court held, in effect, that plaintiff had no claim against the estate; but that the administratrix had in her possession a fund of $471.97 that belonged to plaintiff, not to the estate.

In this jurisdiction, '* * * where the seller contracts to sell a chattel to the buyer for cash, and the seller accepts a check from the buyer as a means of payment of the cash and delivers the chattel to the buyer in the belief that the check is good and will be paid on presentation, no title whatever passes from the seller to the buyer until the check is paid; and the seller may reclaim the chattel from the buyer in case the check is not paid on due presentation.' Wilson v. Commercial Finance Co., 239 N.C. 349, 79 S.E.2d 908, 913, and cases cited. (Our italics.) The rule, as stated, is applicable where the seller elects to reclaim the chattel, Weddington v. Boshamer, 237 N.C. 556, 75 S.E.2d 530, or to recover a specific fund in the hands of the buyer's administrator identified as derived solely from unauthorized sale of the chattel. Parker v. First-Citizens Bank & Trust Co., 229 N.C. 527, 50 S.E.2d 304. In reaching its said first conclusion of law, perhaps the court had this rule in mind.

But a seller, who accepts a check as a cash payment, need not elect to treat the sale as void if the check is dishonored. 'A person sui juris may waive practically any right he has unless forbidden by law or public policy.' Seawell, J., in Clement v. Clement, 230 N.C. 636, 55 S.E.2d 459, 461. The contractual obligation of the buyer to pay cash is a provision solely for the benefit of the seller. If he elects to do so, the seller may waive this provision and ratify the sale. Wilson v. Commercial Finance Co., supra. Moreover, he may do so after he has knowledge that the check, originally accepted as conditional payment, has been dishonored. If he so elects, the remedy then availabe to the seller is to recover on the contract, i. e., the debt due him as agreed purchase price for the chattel. If the rule were otherwise, a dissatisfied buyer could avoid his obligation to pay the agreed purchase price simply by giving a worthless check therefor or by stopping payment on his check, leaving the seller no remedy except to reclaim a chattel he did not want.

'The doctrine of election is founded on the principle that where, by law or by contract, there is a choice of two remedies which proceed upon opposite and irreconcilable claims of right, the one taken must exclude and bar the prosecution of the other. A party cannot, either in the course of litigation or in dealing in pais, occupy inconsistent positions.' Adams, J., in Irvin v. Harris, 182 N.C. 647, 653, 109 S.E. 867, 870. Where a sale is voidable, because induced by fraud, the applicable rule is well stated by Dillard, J., in Wilson v. White, 80 N.C. 280, as follows: 'If a vendor of goods is drawn in to part with his property by fraudulent misrepresentation or concealment of a fact material to the contract and operating as an inducement thereto, and such as a man of ordinary sagacity might reasonably rely on and be influenced by, the sale is voidable, and the vendor has the option to affirm the sale and sue for the price, or hold it null and sue for the goods in specie, as against the purchaser or a stranger holding without valuable consideration or with notice of the fraud. Benj. Sales, 342; Story Sales, sec. 165; Bigelow Fraud, sec. 2.' See, also, Joyner v. Early, 139 N.C. 49, 51 S.E. 778, and cases cited. The rule as stated applies equally when, as here, the seller may treat the sale void or may waive the provision for cash payment and ratify the sale.

Here plaintiff was required to elect as between two available but inconsistent remedies. As succinctly stated in 78 C.J. S. Sales § 597: 'If the seller sues to recover the debt, he looks to the debtor and not to the property; and if he retakes the property, he looks to the property and not to the debtor.'

It follows that, if plaintiff ratified the contracts of sale, his remedy is to recover on contract...