Davis Bros. Co. v. Wallace

• Decision Date: 25 November 1925
• Docket Number: 353.
• Parties: DAVIS BROS. CO. v. WALLACE ET AL.
• Court: North Carolina Supreme Court

130 S.E. 176

190 N.C. 543

DAVIS BROS. CO. v. WALLACE ET AL.

No. 353.

Supreme Court of North Carolina

November 25, 1925

Appeal from Superior Court, Forsyth County; Schenck, Judge.

Action by the Davis Bros. Company against John C. Wallace and another. Defendants had judgment in the county court. From the judgment of the superior court, reversing and remanding cause to county court for new trial, both parties appeal. Affirmed.

Submission of issue of ownership not material to plaintiffs' right to recover in action for breach of claim and delivery bond held erroneous.

This action was instituted in Forsyth county court, on July 16 1924, to recover damages for breach of a bond, executed by John C. Wallace, as principal, and the United States Fidelity & Guaranty Company, as surety. Said bond, conditioned as required by C. S. § 833, was filed by said John C. Wallace in an action commenced by him in said court on May 27, 1921, to procure the issuance and service of a writ of claim and delivery, in said action, for an automobile in possession of Davis Bros. Company. Pursuant to said writ, the sheriff of Forsyth county took said automobile from the possession of said Davis Bros. Company, and delivered same into the possession of John C. Wallace. Thereafter said John C. Wallace, by virtue of a power of sale contained in a chattel mortgage executed by Leo W. Morton, sold said automobile at public auction and filed a report of said sale in said action. On November 23, 1923, without notice to or consent of Davis Bros. Company, defendants in said action said John C. Wallace, plaintiff therein, took a voluntary nonsuit. Plaintiffs in this action allege that the failure of John C. Wallace to prosecute the action in which said bond was filed was a breach of said bond, for which plaintiffs are entitled to recover damages.

Plaintiffs further allege that they were, at the time said automobile was seized by the sheriff, under the writ of claim and delivery, and are now, the owners and entitled to the possession of said automobile; that, notwithstanding the action in which said bond was filed has terminated by a judgment upon a voluntary nonsuit, John C. Wallace, principal in said bond, has failed and refused to return said automobile to plaintiffs, obligee in said bond, but has disposed of the same; that such failure and refusal by John C. Wallace to return said automobile to plaintiffs was a breach of said bond for which plaintiffs are entitled to recover damages.

Plaintiffs allege that the fair market value of said automobile, at time same was seized by the sheriff, was $1,100; they demand judgment that they recover of defendants said sum and interest from date of seizure as damages for the breach of said bond.

Defendants deny that there has been any breach of said bond; deny that plaintiffs were or are the owners and entitled to possession of said automobile. They allege, as a further defense, that plaintiffs are estopped to allege or claim that they are the owners of said automobile (1) by their failure to answer the verified complaint filed on June 11, 1921, by John C. Wallace in the action in which the bond was filed; (2) by their failure to object to the sale of the automobile by John C Wallace, on July 16, 1921, after advertisement, under the power of sale contained in the chattel mortgage executed by Leo W. Morton to John C. Wallace, or to file exceptions to the report of said sale made to the court in said action on July 18, 1921; and (3) by their acceptance of a check on May 27, 1921, given them by John C. Wallace in payment of certain repairs to said automobile, made by plaintiffs after notice of the claim of John C. Wallace to the automobile by virtue of the chattel mortgage executed to him by Leo W. Morton on March 21, 1921, and duly recorded on said date.

The issues submitted to the jury, with answers thereto, were as follows:

"(1) Were the plaintiffs the owners and entitled to the possession of the automobile described in the complaint at the time it was seized by claim and delivery in the case of John C. Wallace v. Davis Bros. Company and Leo W. Morton? Answer: No.

(2) Is the plaintiff's action barred by the statute of limitations? Answer: No.

(3) What amount of damages, if any, are the plaintiffs entitled to recover of the defendants? Answer: ______."

From judgment rendered upon this verdict, plaintiffs appealed to the superior court of Forsyth county, assigning as errors:

First. The refusal of the court to submit issues tendered by plaintiff as follows: (1) Did defendants execute the bond as alleged in the complaint? (2) Was there a breach of the bond as alleged in the complaint? (3) What damages, if any, are the plaintiffs entitled to recover?

Second. The refusal of the court to instruct the jury, as requested by plaintiffs, that--

"The defendants are liable in this action upon the bond for the value of the car at the time of seizure on May 30, 1921, with interest from that date until paid, unless the defendant Wallace had title to the car by virtue of his alleged chattel mortgage. The plaintiffs in this action, being in possession at the time of the seizure in 1921, were presumptively the owners of the car, and are entitled to recover its value, unless the defendant can establish that Wallace was the owner or had special property in it for which he was entitled to possession."

Third. The refusal of the court to instruct the jury as requested, that--

"All allegations and proof of title in the car in the defendant Wallace in this car are material only in mitigation of damages. Upon the issue of damages, the burden of proof is upon the defendants to establish by the greater weight of the evidence that Morton had title to the car at the time Wallace took the alleged chattel mortgage. If defendants do not so satisfy you by the greater weight of the evidence, the plaintiffs are entitled to recover the value of the car at the time of seizure, May 30, 1921, with interest from said date."

Plaintiffs also assigned as error the submission of the issues appearing in the record, the refusal of the court to give other instructions as requested by the plaintiffs, and certain instructions given as appear in the case on appeal.

At the hearing of the appeal, at March term, 1925, of the Superior court of Forsyth county. Judge Schenck sustained the assignments of error, hereinbefore stated, and remanded the cause to the Forsyth county court for a new trial. He did not consider or pass upon other assignments of error. From his judgment and order, both plaintiffs and defendants appealed to the Supreme Court.

Ratcliff, Hudson & Ferrell, of Winston-Salem, for plaintiffs.

Raymond G. Parker and Richmond Rucker, both of Winston-Salem, for defendants.

CONNOR J.

This action is here upon appeal from the judgment of the superior court of Forsyth county, remanding the action to the Forsyth county court for a new trial. It was heard in the superior court upon appeal by plaintiffs from the judgment of the county court. The judge of the superior court, exercising the appellate jurisdiction conferred upon that court by statute (see Chemical Co. v. Turner, 190 N.C. 471, 130 S.E. 154), in deference to the suggestion made in the opinion by Stacy, C.J., in Smith v. City of Winston-Salem, 189 N.C. 178, 126 S.E. 514, in his judgment has stated separately his rulings upon plaintiffs' assignments of error, which resulted in the order for a new trial. He did not consider the remaining assignments of error appearing in the case on appeal. Having sustained the assignments of error considered by him, as stated in the judgment, and thereupon ordered a new trial, he did not deem it necessary to consider or pass upon the remaining assignments. Plaintiffs do not and cannot complain of this. They were successful upon their appeal from the county court, and in this court ask that the judgment of the superior court be affirmed. This court cannot consider or pass upon assignments of error made by plaintiffs in their appeal from the county court, which the superior court did not consider--it is limited to the consideration of assignments of error upon the trial in the county court, sustained by the superior court, and presented to this court by exceptions duly taken by defendants, appellants, who ask that the judgment of the superior court be reversed for errors assigned.

Defendants first assign as error the ruling of the judge of the superior court sustaining plaintiffs' exceptions to the refusal of the trial court to submit the issues tendered by plaintiff and to the issues as submitted. This assignment of error cannot be sustained. The refusal of the trial court to submit the issues...