Hall v. Younts

• Decision Date: 31 October 1882
• Citation: 87 N.C. 285
• Parties: N. C. HALL v. SAMUEL YOUNTS and others
• Court: North Carolina Supreme Court

87 N.C. 285

N. C. HALL

v.SAMUEL YOUNTS and others

Supreme Court of North Carolina.

October Term, 1882.

OPINION TEXT STARTS HERE

CIVIL ACTION tried at Spring Term, 1882, of MECKLENBURG Superior Court, before Gudger, J.

This action is for the conversion of a horse of the value of one hundred and twenty-five dollars, and of a saddle, blanket and bridle of the value of ten dollars. It was commenced against Samuel Younts, John Younts, James Wolfe, John Grier and S. L. Hoover, but the summons was not served on Grier.

The complaint, after averring the title of the property to be in the plaintiff, subject to a chattel mortgage given to the defendant, Hoover, upon which there was a balance due of twelve dollars, alleges that the defendant Wolfe and one Powell acting in behalf of the other defendants, except Hoover, wrongfully took the property from the plaintiff's possession, and that it was afterwards converted to their own use by the defendants in whose behalf it was done.

It is also alleged that the defendant, Hoover, being mortgagee as aforesaid, refuses to join the plaintiff in the action, and therefore is made party defendant, though no judgment is asked against him.

The answer of the defendants, Samuel and John Younts and James Wolfe, consists mainly of a denial of the allegagations of the complaint, and as a further defence alleges that the property was taken from the plaintiff's possession, while in South Carolina, by the said Powell, acting as an officer of that state, to wit, as constable.

The defendant, Hoover, also answered insisting upon his right as mortgagee to recover of his co-defendants for the conversion of the property, and alleging that he had made a demand on them for the property which they refused to deliver.

On the trial issues were submitted to the jury and responded to as follows:

1. Did the defendants, or any of them, wrongfully convert the property mentioned in the complaint, and if so, who? Answer--Yes: Samuel Younts, John Younts and James Wolfe.

2. What damages, if any, did the plaintiff sustain by reason of such conversion? Answer--Total damages one hundred and thirty-five dollars with interest from the date of seizure.

3. What damages, if any, did the defendant Hoover sustain by reason of such conversion? Answer. Hoover as mortgagee $10.55 with interest from maturity of mortgage, and damages by trip to Fort Mills in South Carolina, $5.00.

4. Was the horse described in the complaint the same with the one included in the mortgage? Answer. Yes.

The court thereupon gave judgment in favor of the plaintiff according to the finding of the jury in his behalf, and also for the costs of the action, and at the same time, though on a separate paper, judgment was rendered in favor of defendant, Hoover, according to the verdict in his behalf, including the sum of $5.00 allowed for his expenses incurred. Defendants appealed.

Messrs. Jones & Johnston, for plaintiff .

Mr. T. M. Pittman, for defendants .

RUFFIN, J.

Several of the exceptions taken in the cause turn upon matters of fact and have been decided by the jury.

Taken in connection with the verdict, the evidence discloses the following case: The plaintiff is a resident of this state and owned no other property than that mentioned in the complaint. He was indebted to the firm of S. Younts, Son & Co. in the sum of $65.00 due partly by note and partly by account--the said firm being composed of Samuel Younts, John Younts and James Wolfe, parties defendant, and W. E. Younts and John Grier who are not sued.

In March, 1879, the plaintiff started on a visit to some relatives and passed the store of the defendants, and had some conversation with Sam'l Younts about trading horses, and informed him where he could stop that night at a place in South Carolina.

Plaintiff went to the place, and during the night the defendant Wolfe and one Powell came there and took possession of the horse, bridle, blanket and saddle, and carried them away, so that witness has never recovered them since.

When making the seizure, Wolfe said they had an attachment, but no such paper was then produced, nor was it on the trial--though Powell was a constable in South Carolina.

The defendant Hoover had a mortgage on the property upon which there was a small balance due him. After the seizure he met with the defendant John Younts, and asked him if he did not know that he had such a mortgage, to which he replied that he did not, and upon being assured that such was the case told said defendant “to go and prove his horse.” Hoover then went to Fort Mills in South Carolina, where the horse was, and demanded it of the person in possession of it--that person being a stranger to the action.

The defendant Wolfe was present at the store when his co-defendant and the plaintiff had the conversation about trading horses, and the same evening, at the suggestion of Sam'l Younts, he took the notes and accounts, which the firm held on the plaintiff, to South Carolina, and the defendants alleged that he there sold them to one Bacharock, and that the property of the plaintiff was seized at the instance of that person, and not of the defendants; and they introduced the deposition of Bacharock tending to prove that such was the case, and that he gave in exchange for the claims upon the plaintiff, a note on a third party.

It was in evidence, however, that the defendant Wolfe, in the name of the firm, executed what purported to be an attachment bond, and that he procured one Gibson to become surety thereon.

The first three exceptions taken by the defendants being in pari materia, we have considered together. The first is to that portion of the plaintiff's testimony, wherein he was permitted to speak of his indebtedness to the firm of S. Younts, Son & Co., the second, to the evidence admitted to show the membership of that firm, and the third, to evidence received as to declarations in regard to the sale of the plaintiff's horse made after its seizure, by John Grier, who, though a member of the firm, was not a party to the action.

The contention of the defendants is, that as the plaintiff has seen fit to sue them as individuals, he should not be permitted to speak of acts and circumstances connected with the firm, and so as to affect them through the firm, and more especially to affect them by the declarations of one who is not a party to the action.

This seems to us to be reversing the common order of things. For, though accustomed to see the point raised as to how far a firm may be answerable for wrongs committed by its individual members, we have never before heard a doubt expressed as to the responsibility of each and every member, for the tortious acts of the firm, and we cannot conceive it to be well founded. As a general rule, partners, though bound by the contracts, are not bound by the torts of each other, that is to say, torts committed with regard to matters disconnected with the partnership business. Nor are they ever held to be criminally responsible for the acts of each other, even though done in the course of trade, but only those who are actually guilty. But partners like individuals are responsible for torts committed by their agents under express commands, under the maxim qui facit per alium facit per se, and a...