Commercial In v. Trust

• Citation: 137 S.E. 874
• Decision Date: 04 May 1927
• Docket Number: (No. 423.)
• Court: United States State Supreme Court of North Carolina
• Parties: COMMERCIAL INV. TRUST. v. ALBEMARLE MOTOR CO. et al.

(193 N.C. 663)

137 S.E. 874

COMMERCIAL INV. TRUST.

v.ALBEMARLE MOTOR CO. et al.

(No. 423.)

Supreme Court of North Carolina.

May 4, 1927.

Appeal from Superior Court, Stanly County; Stack, Judge.

Suit by the Commercial Investment Trust against the Albemarle Motor Company and others. From the judgment plaintiff appeals. No error.

The plaintiff brought suit to recover two Jewett motor cars alleged to have been held in trust for the plaintiff by the Albemarle Motor Company and caused said cars to be seized under proceedings in claim and delivery. The defendants denied the plaintiff's allegations and pleaded a counterclaim, to which the plaintiff replied. At the trial one issue was submitted to the jury and answered:

"What was the value of the two automobiles at the time they were seized by claim and delivery proceedings and sold by the plaintiffs? Answer: $2,575."

After the verdict was returned, the parties agreed that the judge might find the remaining facts and render judgment.

The cars were consigned to the shipper with direction to notify the Albemarle Motor Company. At the same time a draft was drawn on this company, with bill of lading attached, for 20 per cent, of the net invoice price and acceptances to be signed by the defendant company for the remaining 80 per cent. The Albemarle Motor Company borrowed the 20 per cent, from the Stanly Bank & Trust Company and executed its chattel mortgage on the cars to the defendant Harris, as trustee, to secure the debt. This mortgage was duly registered, and the 20 per cent, was paid and the acceptances were turned over to the plaintiff. Twenty per cent, of the invoice price and the charge for freight amounted to $714.42. The material part of the judgment is as follows:

"The 20 per cent, and freight having been advanced by the Stanly Bank & Trust Company for Cotton and Smith upon a chattel mortgage by said Cotton and Smith for the amount which was duly recorded, and the paper writing in evidence by the plaintiff the court holds to be nothing more than a retention of title contract that should have been recorded as against the defendant bank but which was not recorded until after the mortgage given by Cotton and Smith to the said bank had been registered, the court is of the opinion, upon these facts and the evidence in the case, that the plaintiffs, as against Cotton and Smith, are the owners of the two automobiles seized but subject to the rights of the defendant bank for the 20 per cent, of the purchase price and freight furnished by them to Cotton and Smith, and therefore, upon motion, the defendant bank will recover of the plaintiffs and the sureties on their undertaking the penal sum of $3,359.36, to be discharged upon payment to the defendant bank the sum of $714.42, with interest thereon from October 1,...