Cobb v. Dibrell Bros., Inc.

• Decision Date: 28 January 1935
• Docket Number: 760.
• Citation: 178 S.E. 213,207 N.C. 572
• Parties: COBB v. DIBRELL BROS., Inc. (VENABLE TOBACCO CO., Inc., Garnishee).
• Court: North Carolina Supreme Court

178 S.E. 213

207 N.C. 572

COBB v. DIBRELL BROS., Inc. (VENABLE TOBACCO CO., Inc., Garnishee).

No. 760.

Supreme Court of North Carolina

January 28, 1935

Appeal from Superior Court, Durham County; Cranmer, Judge.

Civil action by J. O. Cobb against Dibrell Brothers, Incorporated and the Venable Tobacco Company, Incorporated, garnishee. From a judgment for plaintiff, defendant appeals.

Affirmed.

In action against buyer of pledged stock from pledgee on alleged contract to resell stock to pledgor, admission of letter written by pledgor's father to buyer reciting agreement portions of which were competent as corroborating evidence held not error, though letter contained assertions favorable to pledgor's theory, where buyer failed to point out objection and to request court to properly restrict letter.

Party objecting to evidence which is competent for some purposes but not for all, must point objection when it is taken and request court to properly restrict evidence.

The Venable Tobacco Company is a corporation doing business in Durham. J. S. Cobb owned 130 shares, and his son, the plaintiff J. O. Cobb, owned 100 shares of the capital stock of said corporation. This stock had been hypothecated to secure a loan from the First National Bank of Durham. The bank failed on or about the 18th day of January, 1932. Thereafter the receiver of said bank in an effort to liquidate the assets was desirous of disposing of said stock and approached the Standard Investment Company of Durham for the purpose of effecting a sale. The defendant, Dibrell Brothers, is a corporation doing business in Danville, Va and was a stockholder of the Venable Tobacco Company. On November 8, 1932, the Standard Investment Company wrote a letter to Dibrell Brothers stating that the Standard Investment Company had for sale 230 shares of Venable Tobacco Company stock and solicited a bid thereon. In response to said letter, Dibrell Brothers wrote on November 9, 1932, that it might, "however, be induced to pay $5.00 a share for this stock." Thereupon the Investment Company agreed to sell the 230 shares to the defendant, Dibrell Brothers. However, in closing the transaction the Investment Company found that 100 shares of the stock was not properly indorsed to the First National Bank, and on November 18, 1932, advised Dibrell Brothers of that fact. The said defendant advised that it could not accept the certificates unless properly indorsed. Thereafter the Investment Company forwarded to the defendant, Dibrell Brothers, 130 shares of said stock standing in the name of J. S. Cobb, and the attached draft was paid. Subsequently the defective indorsement for the 100 shares standing in the name of plaintiff, J. O. Cobb, was corrected, and on December 7, 1932, the Investment Company forwarded to the defendant, Dibrell Brothers, certificate No. 8 for 100 shares of said stock issued in the name of plaintiff, J. O. Cobb, and the attached draft was paid.

J. S. Cobb, father of the plaintiff, said at the trial: "I had 130 shares of that stock pledged with the First National Bank against our loan. The stock was sold without my knowledge. * * * I found out Dibrell Brothers had bought it. I called up Colonel Carrington and told him * * * that I would like to have the stock back, that is 130 shares. He said, 'All right.' * * * He told me Dibrell Brothers had paid $5.00 a share for it. He agreed to sell it to me for the same price. The stock was delivered to the bank. * * * I found out just after this stock had been delivered to me that it also bought 100 shares belonging to James (plaintiff, J. O. Cobb); so I called Colonel Carrington and told him the stock was sold without his knowledge and that we would like to have it back. He said, all right, we could have it back. He stated that Dibrell Brothers paid the same for it as they did for mine. * * * As soon as I found out that they got this stock I called him right away. I don't think that 100 shares of stock had been delivered to Dibrell Brothers, Inc., at the time I called Colonel Carrington. I am not sure at all when they bought it. * * * I told Colonel Carrington that the 100 shares of stock belonged to my son, James O. Cobb. * * * I told him when I called him it was Jim's stock. Colonel Carrington said he could have the 100 shares of stock back. I mean by that * * * that he could have it back just as I got mine back, at the price he bought it at. By he I mean Jimmie (plaintiff, J. O. Cobb). All the correspondence I remember with Dibrell Brothers, Inc., through any of its officers regarding the 100 shares of stock, was writing to Colonel Carrington and thanking him for letting us have the stock." On December 1, 1932, Dibrell Brothers wrote J. S. Cobb in part as follows: "We suggest, however, in order to get it out of their hands to allow them to forward it to us, and we in turn will be glad to let you have it back," etc. J. S. Cobb, replying to said letter, stated: "I am turning your letter over to my son, J. O. Cobb, and he will write you how he prefers to handle same," etc.

On August 7, 1933, J. S. Cobb wrote a letter to Dibrell Brothers in part as follows: "I am advised by my son, James O. Cobb, that you have until the present time refused to deliver to him the 100 shares of stock of Venable Tobacco Co. at $5.00. * * * You must remember the agreement which we had to the effect that you would let us have the stock upon payment of the sum of $5.00 per share with accrued interest, which represented the cost to you under the terms of your bid to Standard Investment Company. One hundred and thirty shares was for me and the remaining 100 shares was for my son, James O. Cobb. I know that you understood this at the time we were discussing the matter. * * * Therefore, I am writing to request that in keeping with the terms of your agreement that you deliver the stock to my son or forward same to me so that I may deliver it to him," etc.

The record shows that when the foregoing letter was identified by counsel for the plaintiff, and Mr. J. S. Cobb testified that the signature was in his handwriting, the defendant objected. The objection was overruled and exception taken. Thereafter the letter was offered in evidence by the plaintiff and no objection to the letter itself or its contents appears in the record. The witness, J. S. Cobb, further testified on cross-examination that Colonel Carrington, of defendant Dibrell Brothers, stated in a telephone conversation that: "James (plaintiff, J. O. Cobb,) could have it plus interest. * * * He agreed to let Jim and not me have the stock for $5.00, the 100 shares. I was not asking it for myself. I was asking him to let James have it back. He said he would, and I told him it was James' when I called him. If it had been mine it would have come back with the 130 shares."

The plaintiff, J. O. Cobb, testified without objection: "My father was acting as my agent and negotiated with Dibrell Brothers, Inc., for the purchase of 100 shares of stock that had previously stood upon the books of Venable Tobacco...