Martin v. McBryde

• Decision Date: 19 October 1921
• Docket Number: 226.
• Parties: MARTIN v. MCBRYDE.
• Court: North Carolina Supreme Court

108 S.E. 739

182 N.C. 175

MARTIN v. MCBRYDE.

No. 226.

Supreme Court of North Carolina

October 19, 1921

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

Action by J. Reid Martin against D. L. McBryde. Judgment for plaintiff, and defendant appeals. Affirmed.

Plaintiff was not precluded by the fact that there was a partnership between him and defendant from suing defendant for supplies furnished defendant personally for the express purpose of enabling him to supply his hands who were operating his mill plant, with which plaintiff had no connection except as bookkeeper.

This action was brought to recover the sum of $3,663.90, alleged to be due by account stated. An attachment was issued and levied upon certain personal property of the defendant, an itemized list of which was annexed by the sheriff to his return. The attachment was afterwards ordered by Judge Devin to be set aside at the request of J. F. Parker, receiver, in order that the operations of the Garland Lumber Company could be resumed under its contract with defendant, and it was further ordered that "the latter" keep in his possession at least 400,000 feet of lumber pending the further hearing of this cause on the return day thereof "which lumber shall be subject to any liens which the plaintiff may legally assert against the same."

The plaintiff alleged on affidavit that McBryde was disposing of the lumber, or had already disposed of it, in disobedience of the former order of the court, whereupon Judge Guion ordered that defendant show cause why he should not be attached for contempt, and afterwards discharged the rule upon the defendant's filing a sufficient bond in the sum of $5,000, which should stand in the place of the lumber ordered to be held by the defendant for the purpose mentioned in the former order, and "shall be conditioned to pay any such lien judgment as plaintiff may recover against defendant herein."

The court appointed a referee to take and state the account. He made his report, which was set aside so that defendant might introduce further evidence; the notice to him of the hearing of the referee having been deficient. Thereupon Mr. Richard L. Herring was appointed referee for the same purpose. and he filed the following second and final report, as it is termed in the case:

"To the Superior Court of Sampson County:

The undersigned, Richard L. Herring, referee, appointed in this cause by order of his honor O. H. Guion, judge, having formerly made a report on January 29, 1921, and said cause having been referred to said referee by order of Hon. W. M Bond, judge at March term, 1921, of the superior court of Sampson county, begs to report as follows:

On April 5, 1921, at 12 o'clock noon, in the law office of Grady & Graham, Clinton, N. C., the plaintiff being absent in person, but represented by counsel, Henry A. Grady, and the defendant being present in person and also represented by counsel, Messrs. Q. K. Nimocks and E. S. Smith, the defendant proceeded to offer his evidence, which is contained in the typewritten report thereof herewith sent to the court, the plaintiff having heretofore by consent at a former meeting offered in evidence the same testimony that was offered before J. Abner Barker, referee, which appears in the file and upon all of the evidence, pleadings, exhibits, and admissions of the parties the referee makes the following findings of fact, it being agreed by all parties that this report should be heard and passed upon at May term, 1921, all parties waiving time:

First. That heretofore, prior to January 1, 1915, the plaintiff and the defendant were engaged in the mercantile business at Garland, N. C., under the firm name and style of South River Supply Company, and on said January 1, 1915, the defendant D. L. McBryde, conveyed to the plaintiff, W. Reid Martin, all of his right, title, and interest in and to said mercantile business by written conveyance filed with the referee and marked Exhibit E. The referee finds that said paper writing was intended as a chattel mortgage, made for the purpose of securing the plaintiff for certain moneys advanced by him in the conduct of said business.

Second. That during the conduct of the business the said D. L. McBryde was operating a large sawmill and lumber plant near the town of Garland, which was not connected with the South River Supply Company; that he employed a number of hands and made settlement with said hands with metal pay checks, which were cashed at the store of the plaintiff at par; that it was understood and agreed between the plaintiff and the defendant that said pay checks should be received at the store of the plaintiff, as cash, with the further understanding and agreement that the plaintiff should hold said checks in the same manner, and that the same should be collectible upon the same basis as if held by the original parties from whom they were purchased by the plaintiff, and in furtherance of this agreement the defendant executed a certain paper writing in words and figures as follows:

'April 1, 1914.

W. Reid Martin, Proprietor, South River Supply Company, Garland, N. C.--Dear Sir: I hereby authorize you to handle and accept metal pay checks that I issue to my laborers in exchange for their work, the same to be due and payable to you on my regular pay days, the same as if held by said laborers, and I hereby agree that all accounts and holdings of same due and collectible on the same basis as if held by the original parties to whom the checks are paid.

Yours respectfully, D. L. McBryde.'

Third. That during the course of business the plaintiff purchased from the laborers of the defendant, under the agreement referred to in the second finding of fact, metal pay checks, amounting in value of $5,404.05.

Fourth. That this action was commenced on October 13, 1916, and thereafter, on October 17, 1916, J. F. Parker, receiver of the Commonwealth Land & Timber Company, came into court and made himself a party to this action, and upon affidavits filed by the said J. F. Parker and others an order was entered by Hon. W. A. Devin, judge at Kinston, N. C., dissolving the warrant of attachment which appears in the file, and providing as follows: 'And it is further ordered that the said D. L. McBryde proceed to resume operations under his said contract, as though said attachment had not been issued or served, and that he keep in his possession at least 400,000 feet of lumber pending the further hearing of this cause on the return day thereof, which lumber shall be subject to any liens which the plaintiff may legally assert against the same.'

Fifth. That thereafter, on or about January 9, 1919, a petition was filed in this cause, alleging that all of said lumber had been disposed of in violation of the order entered by Judge Devin hereinbefore referred to, and thereupon his honor O. H. Guion issued an order requiring the defendant to appear before him at the courthouse in Clinton, N. C., on Saturday, February 8, 1919, and show cause why he should not be punished for disobeying the former orders made in this cause, and thereafter at the hearing of said motion said writ was vacated upon condition that the defendant file a good and sufficient bond in the sum of $5,000, payable to the plaintiff, which bond was filed by the defendant, with W. L. Williams, Jr., B. F. McBryde, and E. S. Smith as sureties thereto, and contains the following provision: 'The condition of this obligation is such that, whereas the plaintiff has sued the defendant herein for a certain alleged indebtedness amounting to $3,663.90, and claims a lien on certain lumber as appears by the pleadings and papers herein: Now, therefore, if the plaintiff shall recover judgment against the defendant herein and shall be adjudged entitled to a lien on said lumber as security for the payment of said judgment or any part thereof not exceeding the amount sued for, and if the defendant shall pay such judgment as the court may find and adjudge subject to such lien then this obligation to be null and void; otherwise to be and remain in full force and effect.'

Sixth. That the time of the institution of this action D. L. McBryde was indebted to the South River Supply Company on account of metal pay checks taken under the written contract hereinbefore referred to in the sum of $5,404.05, and in addition thereto was personally indebted to said company for goods sold to him individually in the sum of $527.03; so that on the 1st of January, 1917, the assets of said company consisted of the following items:

Cash in bank ....................	$ 19 63
Merchandise on hand ................	318 21
Open accounts .......................	28 81
Personal account D. L. McBryde .....	527 03
Metal pay checks account .........	5,404 05
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Total ......................	$6,297 73

Seventh. That at the time above referred to, January 1, 1917, the South River Supply Company was indebted to plaintiff, Martin, in the sum of $1,754.46 for money loaned to said company from time to time; that the plaintiff has received from the cash in bank, merchandise on hand, and open accounts the sum of $366.65, which should be charged against him and deducted from his one-half interest in the business; so that the account between the two copartners should be stated as follows:

Total assets of the company ...........................	$6,297 73
Account due Martin for money advanced to company .......	1,174 46
	----------
Net worth of business ..............................	$4.543 27
Of this Martin is entitled to one"half ...............	$2,276 685
Of this McBryde is entitled to one"half ...............	2,276 685
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