Chemical Co. v. Johnson

Decision Date12 November 1888
Citation7 S.E. 775,101 N.C. 223
PartiesCHEMICAL CO. v. JOHNSON, et al.
CourtNorth Carolina Supreme Court

Appeal from superior court, Wake county; W. M. SHIPP, Judge.

Action by the Chemical Company of Canton against D. T. Johnson and Charles M. Busbee, to recover the proceeds of certain guano. Verdict for plaintiff. The court, in entering judgment allowed defendant Busbee $100 for counsel fees. From this allowance plaintiff appeals.

Haywood & Haywood and Strong, Gray & Stamps, for appellant.

C. M Busbee, for respondents.

MERRIMON J.

The plaintiff appellant sold to the defendant Johnson certain guano, to be held and sold by him in trust that he would transmit the proceeds of the sale thereof, and such of the guano as he could not sell, to the plaintiff, to pay certain notes, etc. Afterwards, while the guano was in the possession of the said Johnson, he executed to the appellee, defendant Busbee, a deed of trust, whereby he undertook to sell and convey the same and other property to him, to be sold by him and the proceeds thereof devoted to the payment of certain debts specified in the deed. He (said Busbee) afterwards sold the guano, and realized therefor in cash $1,072.82; and claimed the guano, and the proceeds of the sale thereof, by virtue of and for the purposes expressed in the deed mentioned. The plaintiff brought this action to recover from the defendants the guano, and the proceeds of the sale thereof, as above mentioned; and to have the defendant Busbee declared to be and charged as to the said guano, and the proceeds of the sale thereof, a trustee in its favor, etc. On the trial, under instructions from the court, the jury found by their verdict, that the appellee, Busbee, held "the fund arising from the sale of the guano mentioned in the complaint in trust for the plaintiff;" and the court gave judgment in its favor, allowing the appellee, Busbee certain commissions for selling the guano, to which there was no objection, and also "the sum of one hundred dollars to pay counsel fees," to be paid out of the fund mentioned. To this allowance the plaintiff objected, and excepted, and appealed to this court. This court decided in Chemical Co. v. Johnson, 98 N.C. 123, 3 S.E. Rep. 723, that the plaintiff sold the guano mentioned to the defendant Johnson, coupled with the trust that the latter would sell it, and apply the proceeds of the sale to the payment of his several promissory notes made to the plaintiff, coming due successively at different times, for the purchase money thereof. Johnson, therefore, had no right or authority to sell the guano to the appellee, Busbee, trustee, for the purposes specified in the deed of trust made to him; and so neither the guano, nor the proceeds of the sale thereof, became affected...

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