Herring v. Creech, 594

• Decision Date: 15 December 1954
• Docket Number: No. 594,594
• Citation: 84 S.E.2d 886,241 N.C. 233
• Court: North Carolina Supreme Court
• Parties: James R. HERRING and wife, Patricia Faye Herring, v. C. B. CREECH and wife, Bessie L. Creech; and Virgil A. Creech and wife, Iva B. Creech, Trading and Doing Business as Creech Brothers Auto & Trailer Sales.

Page 886

84 S.E.2d 886

241 N.C. 233

James R. HERRING and wife, Patricia Faye Herring, v. C. B. CREECH and wife, Bessie L. Creech; and Virgil A.

Creech and wife, Iva B. Creech, Trading and Doing

Business as Creech Brothers Auto & Trailer Sales.

No. 594

Supreme Court of North Carolina.

Dec. 15, 1954

W. P. Burkhimer, Wilmington, for plaintiffs, appellants.

Aaron Goldberg, Wilmington, for defendants, appellees.

BOBBITT, Justice.

The complaint, in substance, alleges: (1) plaintiffs' ownership and possession of the trailer; (2) the delivery of possession by plaintiffs to defendants as bailees upon the specific terms alleged; (3) the failure of defendants to redeliver possession to plaintiffs upon demand; and (4) the value of the trailer. Plaintiffs sue for the value of the trailer, not to recover possession thereof. Defendants, by answer, admit they do not have the trailer, alleging that Johnson Trailer Sales had repossessed the trailer as authorized by the conditional sales contract.

Plaintiffs, by their allegations, base their case squarely and solely upon defendants' failure to redeliver the trailer to plaintiffs in breach of their alleged duty to do so. There are no allegations that the trailer was in any way damaged while in defendants' possession. Nor are there allegations of negligence, fraud or connivance by the defendants in connection with the repossession of the trailer by Johnson Trailer Sales, or of any advantage accruing to defendants by such repossession.

In an action in the nature of a common law action in trover and conversion, as distinguished from an action in trespass, proof of surrender of the chattel to the true owner is a complete defense. Hostler's Adm'r v. Skull, 1 N.C. 183, Tayl. 152, 1 Am.Dec. 583; Dowd v. Wadsworth, 13 N.C. 130, 18 Am.Dec. 567; Barwick v. Barwick, 33 N.C. 80; Pitt v. Albritton, 34 N.C. 74; Boyce v. Williams, 84 N.C. 275; Vinson v. Knight, 137 N.C. 408, 49 S.E. 891.

In Thompson v. Andrews, 53 N.C. 125, this Court recognized and applied this principle in an action by bailor against bailee. The action was brought to recover the value of wheat left by plaintiff's agent at defendant's mill with instructions to keep it until plaintiff called for it, to which defendant assented. Defendant delivered the wheat to a third party (Pickard), who had demanded it as owner. It was held that delivery to the true owner was a complete defense to plaintiff's action. Battle, J., for this Court, says: 'If Pickard were the real owner of the article, could the plaintiff's act of bailing it to the defendant prevent Pickard from claiming it and recovering its value, if it were withheld from him by the defendant? Surely not. No man can be thus deprived of the right of demanding his property from any person who has possession of it and retains it against his will. The refusal of the possessor to deliver it upon such a demand would be evidence of a conversion, for which, if unexplained, the owner would be entitled to recover the full value of his property. If, then, the possessor cannot upon the ground of his being the bailee of another person, resist the claim of the true owner, his surrender of the article to the owner must necessarily be a defense against the action of the bailor, founded upon the charge of a conversion of the property.'

An accepted principle in the law of bailments is that, in short phrase, the bailee is estopped to dispute or deny the bailor's title. A complete and accurate statement of this principle is given us by Judge Dobie: 'The bailee is not permitted to dispute the bailor's title, at the time of the delivery of the goods to him, by setting up in himself an adverse title to the goods as of that time.' Dobie, Bailments and Carriers, sec. 14. Peebles v. Farrar, 73 N.C. 342, cited by appellant, illustrates the factual situation in which the principle applies. There, the plaintiff (landlord) delivered to the defendant (merchant) seven bales of cotton. The defendant agreed to store it in his yard and take care of it for the plaintiff. Thereafter, the defendant sold the cotton and applied the proceeds of sale on a mortgage debt due him by plaintiff's tenant. Plaintiff recovered from defendant the value of the cotton. The matter is put succinctly by Pearson, C. J.: 'His Honor * * * instructed the jury that the receipt of the cotton by the defendant of the plaintiff, with an express promise on the part of the defendant that he would take care of the cotton for the plaintiff, constituted the relation of 'bailor and bailee.' There can be no doubt about that. His Honor further instructed the jury that a bailee is not allowed to dispute the title of the bailor and set up title in himself. This is familiar learning. The matter is too plain for discussion.' (Emphasis added.) 6 Am.Jur., Bailments, sec. 99; Annotation, 43 A.L.R. page 153 et seq.

The law in other jurisdictions is summarized as follows: 'As an exception to the general rule that a bailee is estopped to deny his bailor's title, the weight of modern authority supports the view that where a demand by the true owner, entitled to immediate possession, has been made upon the bailee, and the property has been turned over to him, the bailee, where he acts in good faith and without fraud or connivance, may show the title of the true owner and delivery to him as an excuse for the failure to redeliver to the bailor.' 6 Am. Jur., Bailments, sec. 107. See, also, Annotation, 43 A.L.R. page 157...