Gossler v. Wood

• Decision Date: 13 April 1897
• Parties: GOSSLER v. WOOD.
• Court: North Carolina Supreme Court

27 S.E. 33

120 N.C. 69

GOSSLER v. WOOD.

Supreme Court of North Carolina

April 13, 1897

Appeal from superior court, Bertie county; Graham, Judge.

Action by John Y. Gossler against M. L. Wood to recover money received by defendant as plaintiff's agent, and converted to his own use. From a judgment for plaintiff, defendant appeals. Affirmed.

In an action for conversion, defendant is not prejudiced by the charge: "A conversion consists either in the appropriation of a thing to a party's own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it in exclusion or in defiance of the plaintiff's rights, or in withholding the possession from the plaintiff under a claim of title inconsistent with his own. If a person intrusted with another's goods places them in the hands of a third person, contrary to orders, it is a conversion."--

R. B Peebles and Spier Whitaker, for appellant.

F. D Winston, for appellee.

FAIRCLOTH C.J.

The pleadings in this case are complaint, answer and counterclaim, amended answer, and amended complaint. The issues are these: "(1) Was the plaintiff the owner of the timber described in the complaint?" Answered by the jury, "Yes." "(2) Did the defendant contract with the plaintiff to cut, remove, and sell the timber as alleged in the complaint?" "Yes." "(3) Did the defendant cut or remove and sell 101,291 feet of said timber at the price of $5.50 per thousand feet?" "Yes." "(4) Did the defendant fail to account for and pay over to plaintiff the proceeds of said sale of timber, after deducting the sum of $2.50 per 1,000 feet, as alleged in the complaint?" "Yes." "(5) Did the defendant wrongfully take, detain, and convert said timber, or the proceeds of the same?" "Yes." "(6) Did the plaintiff contract with the defendant that the defendant should cut and deliver 500,000 feet of cypress timber for the plaintiff?" "Yes." "(7) Did the plaintiff wrongfully prevent the defendant from cutting and delivering said 500,000 feet of cypress timber?" "No." "(8) If so, what damages if any, has the defendant sustained?" This action is brought to recover $329.66, the net balance due plaintiff on a contract to cut cypress timber trees, and sell the same which contract required the defendant to make return of accounts of sale, and remit balance of proceeds to the plaintiff. The plaintiff alleges that the defendant refused to pay said amount, and this is admitted. Plaintiff also alleges that defendant's refusal is a breach of the fiduciary relation and confidence between them by reason of his agency. This is denied. Defendant, in his answer, avers that at the same time he had a parol agreement with the plaintiff to cut 500,000 feet of cypress timber on agreed terms, and that he was stopped from so doing by plaintiff, after some expenditures, and was damaged $1,000, and alleges this as a counterclaim, and offers this as his excuse for refusing to pay the net balance aforesaid. In his amended answer he denies several of the allegations admitted in his original answer to be true. The case was tried upon the admissions in the pleadings and the evidence of the parties, and the jury found all the issues in favor of the plaintiff. Pending the action, the plaintiff obtained an order of arrest against defendant, as he was authorized to do under Code,§ 291, par. 2, and so held in Boykin v. Maddrey, 114 N.C. 98, 19 S.E. 106. There being no exceptions by either party to the evidence touching the counterclaim, the finding of the jury on the seventh issue cut the counterclaim up by the roots, and that is out of the case. His honor rendered judgment for plaintiff, and against the counterclaim, and adjudged that plaintiff is entitled to an execution against the person of the defendant. All the exceptions were abandoned in this court except the third, fourth, seventh, and ninth. The fourth exception must be overruled, for the reason that the question was subsequently answered by the defendant when he said, "I deposited the money with Harrell by advice of counsel, to hold until litigation ended." The seventh exception was to the charge that, if the jury believed the evidence, they should answer the second, third, and fourth issues "Yes." The original answer admits those facts to be true, but they are denied in the amended answer, and we find nothing in the evidence of the defendant or other witnesses denying the fact found by the jury on those issues. Exception overruled. The ninth exception was to this part of the charge: "A conversion consists either in the appropriation of a thing to a party's own use and beneficial enjoyment, or in its destruction, or in exercising dominion over it in exclusion or defiance of the plaintiff's rights, or in withholding the possession from the plaintiff under a claim of title inconsistent with his own. If a person intrusted with another's goods places them in the hands of a third person, contrary to orders, it is a conversion." The exception fails to point out the error, and we see nothing in the charge prejudicial to the defendant. The exception must be...