Lance v. Butler

• Decision Date: 28 February 1904
• Citation: 47 S.E. 488,135 N.C. 419
• Court: North Carolina Supreme Court
• Parties: LANCE . v. BUTLER.

47 S.E. 488

135 N.C. 419

LANCE .

v.BUTLER.

Supreme Court of North Carolina.

Feb. Term, 1904.

conditional sales—agency—partnership— mortgaging firm property — validity of mortgage — conversion — confusion of gwds—trial—issues.

1. A contract whereby the owner of goods delivered them to another, the owner retaining title, and the one receiving the goods agreeing to sell them and pay to the owner a specified portion of the price for which they were sold, creat ed a mere agency, and was not a conditional sale within Code, § 1275, requiring all conditional sales to be reduced to writing and registered.

2. The proceeds of sales made by an agent are a trust fund in the hands of the agent, except as to his commissions for selling.

3. An agreement whereby one is to receive part of the profits of an enterprise, as a means only of ascertaining his compensation, does not create a partnership.

¶ 3. See Partnership, vol. 38, Cent. Dig. § 23.

4. A partner has no authority, without the consent of the other partners, to mortgage firm property for his own debt, irrespective of whether the mortgagee knew that the assets were partnership property.

5. Where one not the owner of goods gave a mortgage thereon, and the true owner sued in conversion the mortgagee, who had sold the goods under the mortgage, a request for an issue as to whether the plaintiff was damaged by the sale, and, if so, how much, was proper.

6. Code, § 530, provides that the amount of any judgment shall bear interest until paid. Held, that where one not the owner of goods mortgaged them, and the true owner sued the mortgagee in conversion, and the issue was submitted as to whether plaintiff! was damaged by the sale under the mortgage, and, if so, how much, the jury in their discretion might have allowed interest from the date of the conversion.

7. Where one not the owner of goods mortgaged them, and the true owner sued the mortgagee in conversion, and the issue submitted was, "What was the value of the goods sold under the mortgage?" to which the jury responded, "$300, " it was error to allow interest except from the date of the judgment; Code, § 530, providing that the amount of any judgment shall bear interest until paid.

8. Such error in the judgment did not call for a reversal, but the judgment would be reformed so as to call for interest only from date of the judgment.

9. Where one who was an agent for another for the sale of goods mixed such goods with his own stock-of goods, the title of his principal attached to the whole stock until the value of his goods were returned to him or properly accounted for.

10. Where one who was agent for the sale of goods for another allowed them to be mixed with his stock of goods, and then gave a mortgage on the entire stock, the mortgagee obtained no better title than the mortgagor had.

11. A contention that the court erred in giving undue prominence to the testimony of one particular witness was without merit, whore his name was mentioned in the charge but once, and that on an issue which was answered as a proposition of law under an instruction of the court.

Appeal from Superior Court, Buncombe County; E. B. Jones, Judge.

Action by F. A. Lance against Washington Butler. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The plaintiff entered into the following contract with Hunter & Lance:

"North Carolina—Buncombe County.

"This instrument of writing, witnesseth, that I have this day and with these presents do hereby consign to Z. T. Hunter and M. E. Lance, partners trading and doing business at Mills river, North Carolina, in Henderson County, under the firm name and style of Hunter & Lance, a certain stock of goods, wares, merchandise, books, accounts, choses in action and effects, together with the fix-tures, Including safe, show cases, scales, spool-cotton cabinets, etc., now in the store formerly occupied by T. C. Hunter & Co., at Arden, Buncombe County, N. C, and also one two horse wagon now in the blacksmith shop of Clayton & Reagan, at Arden, N. C, being all the property this day conveyed to me by Frank Carter, trustee.

"This consignment is made upon the following terms and conditions, to-wit: The said Hunter & Lance are to sell the goods in the course of their business for cash, at figures not less than the cost of the same to me, to-wit: One thousand and sixty-two and 52-100 dollars, the proceeds as they arise from the sale of said goods to be paid to me or my order, until the said cost, to-wit, $1002.52 is fully paid and discharged. The balance of the proceeds arising from the sale of said goods, if any there shall be, to be paid as follows: One half to me and one half to be retained by said Hunter & Lance as their compensation for selling and disposing of the same.

"The title to said goods hereby consigned is to remain in me, and said goods shall be kept separate from the general stock of said Hunter & Lance, so that they may at any and all times be fully identified as the goods hereby consigned.

"Interlineation In the 27th line of the first page of this instrument made before signing.

"Witness my hand and [seal], this December 17, 1892. F. A. Lance. [Seal.]

"Witness: Frank Carter.

"We hereby agree to receive, hold and dispose of the property consigned to us by the foregoing instrument, upon the conditions and for the purposes therein set forth.

"Hunter & Lance.

"Witness: Frank Carter."

Subsequently Hunter & Lance removed the goods to Greenville, S. C., where Z. T. Hunter executed a chattel mortgage to secure his individual indebtedness to the defendant under which they were sold, the plaintiff being present and forbidding the sale. This action is to recover damages for the conversion.

Jones & Jones,...