Lamb v. Goodwin

• Decision Date: 31 December 1849
• Parties: WILLIS LAMB v. HENRY P. GOODWIN et al.
• Court: North Carolina Supreme Court

10 Ired. 320

32 N.C. 320

WILLIS LAMB

v.HENRY P. GOODWIN et al.

Supreme Court of North Carolina.

December Term, 1849.

Where one conveyed to a trustee, for the purpose of paying his debts, all his interest in the goods in a certain store, his books, notes, accounts, & c., and the trustee sold the whole at public sale for a price upon which he fixed; Held, that the person, who made the conveyance, being present at the sale and not objecting, was bound by it, at least at law, however irregular the sale may have been.

The cases of Bird v. Benton, 2 Dev. 179, Governor v. Freeman, West v. Tilghman, 9 Ire. 165, cited and approved.

Appeal from the Superior Court of Law of Perquimans County, at the Fall Term 1849, his Honor Judge BAILEY presiding.

On the 22nd of April, 1846, the plaintiff, for the purpose of securing and paying certain debts, executed to one Black a deed, conveying several tracts of land, stock, farming utensils, &c., also all his stock in trade at Newby's bridge, and Pine Grove, consisting of dry goods, groceries, &c., “likewise all the books, accounts, notes, bonds, judgments, and other evidences of debts, due the said Willis Lamb; in trust, to sell the lands and other property, herein conveyed, at public auction for ready money, and convey the same by proper and sufficient assurances to the purchasers, and apply the money to the payment of said debts”--the sale to be made at Newby's bridge, after due advertisement.

In January 1847, at Newby's bridge, Black offered, at public sale, all his right, title, interest, and claim, and every evidence of debt in and upon the Pine Grove establishment, which he had by virtue of the deed of trust, except one account of $30, which one of the defendants afterwards paid him. The plaintiff was standing by, when the offer to sell was made, and said nothing. Black observed, he must have at least $375. One Wilroy had that sum for the defendants, and it was knocked down to the defendants at that bid. The goods were at Pine Grove two miles distant. On the 8th of February, Black executed to the defendants a deed, conveying all his right and interest in the stock of goods at Pine Grove, and releasing to the defendants all the debts and demands against them, assigned to him in and by virtue of the deed of trust, for the consideration of $375.

On the 1st of April, 1846, the defendants signed the following instrument, not under seal:

“Received, April 1st, 1846, of Willis Lamb, in goods and merchandise, to the amount of two thousand and seventv-two dollars, of which we are to sell and pay, as fast as sold and collected, with the addition of twelve cents on the dollar on all goods sold, and when all parties agree to close said business the said Willis Lamb is to take back all goods, not disposed of, at the former cost.”

The plaintiff also proved, that he advanced other goods upon the same terms subsequent to the date of the written contract; and that, on the 1st of November 1845, he advanced the greater part of the goods estimated in the written contract of April 1846; that he made a demand upon the defendants; that they refused, and this action was commenced. The action is assumpsit--pleas, general issue, payment, accord, and satisfaction.

The Court charged, that the plaintiff was entitled to recover, unless he assented to the sale made by Black to the defendants; but, if he did assent, he was not entitled to recover, and his standing by and not forbidding the sale, was evidence of his assent, but not conclusive, and that fact was submitted to the jury. To this part of the charge the plaintiff excepted.No counsel for the plaintiff .

Heath and ...