House v. Parker

• Decision Date: 02 March 1921
• Docket Number: 105.
• Citation: House v. Parker, 181 N.C. 40, 106 S.E. 137 (N.C. 1921)
• Parties: HOUSE v. PARKER.
• Court: North Carolina Supreme Court

106 S.E. 137

181 N.C. 40

HOUSE v. PARKER.

No. 105.

Supreme Court of North Carolina

March 2, 1921

Appeal from Superior Court, Halifax County; Lyon, Judge.

Action by A. C. House against Surry Parker. Judgment for plaintiff and defendant appeals. New trial.

This was a civil action for damages, tried upon an alleged wrongful conversion of plaintiff's property by the defendant, Surry Parker.

In July, 1916, plaintiff, a resident of Halifax county purchased from the defendant, who resided at Pinetown, N. C a steam logging loading outfit upon a retained title contract. The terms of said agreement touching the reservation of title were as follows:

"The condition of the above contract is that the legal title and right in and to the above-described property is to remain and be vested in Surry Parker, Pinetown, N. C., until the said notes and all interest thereon accrued are paid off and in case the said party of the second part should fail to pay off the amount due by the said notes, or either of them, at maturity, then the entire debt shall become due and payable, and it shall be lawful for the said Surry Parker, Pinetown, N. C., to take possession of the said property at any time thereafter; but in case the said notes are paid off then the title of said property to vest in the said party of the second part."

The machinery was shipped by freight to the plaintiff at Garysburg, N. C.; bill of lading for same being attached to draft and sent to the Bank of Weldon, with instructions to notify plaintiff. Pending negotiations between the parties as to the correctness of said draft and the execution of the purchase-money notes, the shipment was returned by the railroad companies to the point of origin.

Plaintiff then instructed the defendant to hold the machinery at Pinetown until he could arrange to pay for it or until he could sell it. There was evidence tending to show that the plaintiff's mill had been shut down in the meantime, and that he desired to sell said machinery at Pinetown, if he could do so to advantage.

Upon failure of the plaintiff to pay his last note at maturity, defendant sold said property at public auction as security for his claim. The amount received at said sale was insufficient to pay the balance of the debt. With respect to defendant's right to sell the machinery, after due notice, and apply the proceeds to the payment of the purchase money, his honor charged the jury:

"But if you should find that, after this property was shipped back to Pinetown, House ratified the reshipment and agreed to let the property remain there in the hands of Parker, to be

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