Cudd v. Rogers

• Citation: 98 S.E. 796,111 S.C. 507
• Decision Date: 22 March 1919
• Docket Number: 10174.
• Parties: CUDD v. ROGERS.
• Court: United States State Supreme Court of South Carolina

98 S.E. 796

111 S.C. 507

CUDD v. ROGERS.

No. 10174.

Supreme Court of South Carolina

March 22, 1919

Appeal from Common Pleas Circuit Court of Spartanburg County; T. S Sease, Judge.

Action by J. N. Cudd against J. W. Rogers. From a judgment for defendant, plaintiff appeals. Affirmed.

Carson Boyd & Tinsley, of Spartanburg, for appellant.

Sanders & De Pass and C. M. Drummond, all of Spartanburg, for respondent.

GAGE J.

Action to recover the possession of an automobile. There are pending several actions of a like character as this, and dependent upon the decision of this one. The defendant had a verdict and from the judgment thereon the plaintiff has appealed here.

These are the circumstances of the transaction: Cudd is a citizen of substance at Spartanburg; Johnston is a vendor of cars. Johnston had no money. Johnston purchased six cars, and when the cars arrived at Spartanburg Cudd loaned Johnston the money to pay the drafts drawn against them. In order to secure himself from loss, Cudd took from Johnston a mortgage on the cars. Johnston's practice was to sell the cars and he sold one to Crimm, and from that person Rogers bought the car.

The defense, inter alia, was:

"That the plaintiff authorized the sale and disposal of the said automobile to the defendant, or to any one else that it could be sold to, and therefore plaintiff has no claim over said car, and is estopped from asserting his lien."

That allegation makes the real issue in the case; for the appellant's brief declares that--

"The issue in this appeal is on the law of mortgagee's consent to sale of mortgaged property, and the exceptions are to the court's rulings on that issue, in charge and on motion for new trial." Thereabout the court charged the jury in these words:

"Therefore, gentlemen, I charge you this: That if the mortgagee, Mr. Cudd, consented for the mortgagor, W. J. Johnston, to dispose of and sell the automobiles covered by this mortgage, and if Rogers bought the automobile through Johnston, or those acting for W. J. Johnston, then Rogers gets a good title to the automobile. If you find that Mr. Cudd consented to the sale of these automobiles, or to the sale of any one of them, because all of them are in the same condition--what applies to one applies to all, because the condition of the mortgage is the same as to all. If Mr. Cudd consented, either before he took the mortgage or after, that Johnston could sell the property, and in the course of business Johnston did sell the property, a good and complete title, and is entitled to keep the automobile; but the defendant must prove by the preponderance of the evidence, by the greater weight of the evidence, not beyond a reasonable doubt, and not necessarily by the greater number of witnesses, but by the greater weight of the evidence, that Mr. Cudd did so consent for Mr. Johnston to sell."

And thereabout the court refused to charge the jury, at the plaintiff's request, these words:

"I will define to you the issue for your consideration as to the consent of plaintiff to a sale and the release of this automobile from the mortgage. It is this: Did the plaintiff tell the defendant or his predecessors in possession of the automobile that he would not claim the same under his mortgage, or was his conduct toward the defendant or his predecessors in title such as would lead an ordinary prudent man to the belief

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