Jennette v. Coppersmith

• Decision Date: 18 September 1918
• Docket Number: 12.
• Citation: 97 S.E. 54,176 N.C. 82
• Parties: JENNETTE ET AL. v. COPPERSMITH ET UX.
• Court: North Carolina Supreme Court

97 S.E. 54

176 N.C. 82

JENNETTE ET AL. v. COPPERSMITH ET UX.

No. 12.

Supreme Court of North Carolina

September 18, 1918

Appeal from Superior Court, Pasquotank County; Bond, Judge.

Action by W. H. Jennette and another, trading as "Jennette Bros. Co.," against Elisha Coppersmith and wife. Judgment for plaintiffs, and defendants appeal. No error.

The relevant facts are stated in case on appeal as follows:

"The plaintiffs, W. H. Jennette and L. B. Jennette, are brothers and partners trading as 'Jennette Bros. Co.,' and are residents of Pasquotank county, N.C. During the year 1914, one W. B. Halstead, a farmer, went to plaintiffs and requested them to furnish him with guano and fertilizers to go under his crop, at which time plaintiffs learned that defendants had a mortgage on the personal property and crops of said Halstead, and, knowing this, the plaintiffs refused to furnish said Halstead with guano and fertilizers unless the defendants would release the said Halstead from the operation of the mortgage they had against him, or at least consent and allow the plaintiffs' mortgage to come in ahead of the defendants in this cause. After the plaintiffs refused to furnish the said Halstead with guano and fertilizers, the defendants released, in writing, their mortgage from operating ahead of the plaintiffs' mortgage on the property of the said Halstead, and particularly did the defendants write plaintiffs that they would let plaintiffs come in ahead of their mortgage, if they would furnish said Halstead with guano and fertilizers. The paper writing was in words and figures as follows:

'Messrs Jennette Bros. Co.--Dear Sirs: You can let Mr. W. B Halstead have what guano he wants, and we will let you come in ahead of our mortgage. March 28, 1914.

E. Coppersmith.'

It was admitted that E. Coppersmith signed this for his wife, Attie and himself. Whereupon plaintiffs furnished, on April 1, 1914, the said Halstead with guano and fertilizers to the amount of $116.50, and took a mortgage on the personal property and crops of said Halstead, which was the identical property covered by the defendant's mortgage. Plaintiffs would not have furnished said Halstead with guano and fertilizers, if defendants had not allowed the mortgage of the plaintiffs to come in as a prior lien to the mortgage of the defendants, and by reason of the defendants allowing plaintiffs to come in ahead of their mortgage the plaintiffs were induced to furnish and did furnish the said Halstead with fertilizers. Subsequent to plaintiffs taking their mortgage on the personal crops of the said Halstead, which was the identical property covered by the defendants' mortgage, on or about January 6, 1916, the defendants took the said personal property of the said Halstead and sold the same at their residence and converted the proceeds of said sale to their own use and have never turned over any of the proceeds or any of the property to the plaintiffs.

Halstead has never paid to the plaintiffs any part of the note secured by the mortgage, nor have the defendants paid any part of the proceeds of said sale, or turned any of the property over to the plaintiffs. Demand has been made by the plaintiffs, both on Halstead and the defendants, for the property or payment for the same. It was admitted that the...