Gurley v. Woodbury

• Decision Date: 03 January 1919
• Docket Number: 587.
• Citation: 97 S.E. 754,177 N.C. 70
• Parties: GURLEY v. WOODBURY.
• Court: North Carolina Supreme Court

97 S.E. 754

177 N.C. 70

GURLEY v. WOODBURY.

No. 587.

Supreme Court of North Carolina

January 3, 1919

Appeal from Superior Court, Cherokee County; Lane, Judge.

Action by H. D. Gurley against W. H. Woodbury. From judgment rendered for plaintiff, both parties appeal. Affirmed on both appeals.

Where facts alleged in defendant's counterclaim were substantially the same as those alleged in his complaint in a former action against plaintiff, a compromise and settlement of former action precludes a consideration of such facts in subsequent action.

This is an action to recover money.

The matters in controversy were referred by the court against the will of the defendant, and his exception thereto was duly noted; but the following facts do not seem to be in controversy:

On the 1st day of June, 1914, the Bank of Dahlonega, Ga., held a note of that date, payable to said bank four months after date with interest at 8 per cent. after maturity, which rate of interest was permissible by the laws of Georgia signed as maker by the defendant, Woodbury, and indorsed by the plaintiff, Gurley. That the defendant, Woodbury deposited with said bank as collateral security for the payment of said note 30 shares of stock of the North Georgia National Bank, with full authority to sell the same upon default in the payment of said note and to apply the proceeds to the note. That said note was not paid at maturity, and said shares of stock were sold and were bought by the plaintiff, Gurley, for the sum of $360, which was credited on said note. That the transfers on said shares of stock, when deposited by defendant as collateral security, were signed by the defendant, Woodbury, but his signature was not witnessed, and said North Georgia Bank refused to issue new stock to the plaintiff for said shares of stock because of the absence of a witness to the signature of the defendant. That the plaintiff thereupon sent the certificates of stock to the American National Bank of Asheville for the purpose of having the same properly witnessed and the signature of the defendant acknowledged by him. That the defendant then commenced an action in the superior court of Buncombe county for the purpose of recovering said stock, alleging that the sale was illegal and the result of a conspiracy and that he had been damaged thereby. That issue was joined in said action in Buncombe county, and thereafter all matters in controversy, in said action and between the parties, the plaintiff herein being a defendant in said action and the defendant herein the plaintiff, were compromised and settled, and the following agreement was entered into between the plaintiff and the defendant:

"This agreement, made and entered into this the 21st day of April 1916, between W. H. Woodbury, of the county of Cherokee state of North Carolina, and H. D. Gurley, of the county of Cobb, state of Georgia, witnesseth:

That, whereas, there is now pending in the superior court of Buncombe county, North Carolina, a claim and delivery proceeding in favor of W. H. Woodbury against H. D. Gurley and the American National Bank, involving the right of possession of 30 shares of the North Georgia National Bank stock, of Blue Ridge, Georgia, being certificates Nos. 124 for 10 shares; 145 for 5 shares; 154 for 4 shares.

Whereas, a judgment was obtained in the superior court of Lumpkin county, at the October term, 1915, against W. H. Woodbury, principal, and H. D. Gurley as security, upon a certain promissory note in favor of the Bank of Dahlonega, as collateral security for which the stock in question was originally deposited with said bank; and

Whereas, at a sale had on the 12th day of January, 1915, by the Bank of Dahlonega, H. D. Gurley purchased the said shares of stock in question, the consideration therefor being credited on the note in favor of said bank; and

Whereas, the said W. H. Woodbury contends that the said sale was illegal, and the price bid, and paid by said Gurley for said stock was inadequate and insufficient the said contention being the basis for said action in said North Carolina court:

Now, for the purpose of settling said action in the superior court of Buncombe county, North Carolina, and settling all differences between the parties hereto, it is agreed by and between them as follows:

H. D. Gurley on his part agrees upon the dismissal of said action in North Carolina, and the proper signing of the transfers of said certificates by said W. H. Woodbury, to accept the said stock, to attend the meeting of the stockholders of the said North Georgia National Bank to be held on the 18th day of May, 1916, at the office of company, at Blue Ridge, Ga., in accordance with the call therefor and notice of assessment, either in person or by proxy, and on said date to allow the said W. H. Woodbury the actual book value of the said shares of stock, as shown by the records and books of said bank, as a credit upon the said execution in favor of said Bank of Dahlonega, disregarding the amount bid at the sale had by the said bank, heretofore mentioned, with the additional right granted to W. H. Woodbury to sell said stock for cash at any time between this date and the said 18th day of May, 1916, for any amount in excess of the book value thereof, credit to be given for the proceeds of said sale. Should the value of said stock exceed the amount of the bid of said Gurley, at said sale, the credit to be allowed on said execution is to be based upon the original indebtedness, a credit for said amount having been allowed by said Bank of Dahlonega thereon, prior to suit and judgment.

The said W. H. Woodbury agrees on his part to immediately withdraw the suit pending in said superior court of Buncombe county, North Carolina, and to sign the transfers upon the stock certificates to the said H. D. Gurley.

In witness whereof, each of said parties hereto have set their hands and affixed their seals, the day and year above written. Signed in duplicate.

W. H. Woodbury.

H. D. Gurley.

Hugh A. Hill, Notary Public, Cobb Co., Ga."

The agreement was entered into on the 21st of April, 1916, and the notice of assessment referred to therein is a notice of an assessment by the Comptroller af the Currency of date April 5, 1916, directed to the directors of the North Georgia National Bank and notifying them that the capital stock of said bank was impaired, the amount of the impairment, and stating in detail the items of worthless assets carried on the books of the bank, and directing the directors to call a meeting of the stockholders for the purpose of an assessment on the stockholders to make good said impairment of the capital stock or to take steps to put said bank in liquidation. That pursuant to said notice the meeting of May 18, 1916, was called, at which meeting the defendant was present and voted in favor of selling all of the property and assets of the bank to the Ferrin County Bank upon its assuming the liabilities of the North Georgia Bank, except its liabilities to stockholders. That said notice and assessment of the comptroller was on file and...