McCormick v. Crotts

• Decision Date: 14 May 1930
• Docket Number: 529.
• Citation: 153 S.E. 152,198 N.C. 664
• Parties: McCORMICK v. CROTTS.
• Court: North Carolina Supreme Court

153 S.E. 152

198 N.C. 664

McCORMICK v. CROTTS.

No. 529.

Supreme Court of North Carolina

May 14, 1930

Appeal from Superior Court, Montgomery County; Oglesby, Judge.

Action by J. U. McCormick, doing business as the Carolina Theater Supply Company, against C. T. Crotts. Judgment for plaintiff and defendant appeals.

Error and remanded.

Sureties on replevin bond of infant for property replevied by infant after seizure on default under conditional sales contract held liable only for return of property, and not for damages where such was extent of infant's liability (C.S. § 836).

Sureties on replevin bond could not be held beyond terms of their contract.

Civil action to recover on certain promissory notes and to foreclose chattel mortgage given as security for the payment thereof.

On February 15, 1925, the plaintiff sold to the defendant, as evidenced by conditional sales contract, "One Superior Machine complete and Snaplite Lens," for use in the Garden Theater at Biscoe, N. C., and took from the defendant a number of promissory notes secured by said conditional sales contract.

Default having been made in the payment of said notes, or a part of them, this action was instituted October 6, 1925, with ancillary proceedings in claim and delivery for the property described in the conditional sales contract. The defendant replevied, gave bond under the statute, and held the property. On October 31, thereafter, the defendant filed answer and set up that the machine and lens were defective and not as represented.

On June 1, 1927, the defendant informed the court that he was a minor, without general or testamentary guardian, and asked that a guardian ad litem be appointed to represent him in this action. This was done. Thereafter, on October 5, 1927 the guardian ad litem filed answer, repudiated the purchase of said machinery on the ground of the defendant's infancy, tendered the property back to the plaintiff, and demanded a return of so much of the purchase price as had already been paid. The plaintiff denied the infancy of the defendant, and, upon the issues thus joined, the following verdict was rendered by the jury at the September term, 1928, Montgomery superior court, Hon. John M. Oglesby, judge presiding:

"1. What was the value of the machine described in the complaint at the time it was taken in claim and delivery? A. $387.50.

"2. What is the present value of said property? A. $87.50.

"3. Is the defendant, C. T. Crotts, a minor? A. Yes.

"4. What amount on the notes and contract described in the complaint is still unpaid? A. $276.40 with interest due from July 15, 1925.

"5. What amount has the defendant paid on said property? A. $298.20."

Judgment was not signed at the trial term, as the presiding judge was called away for providential reasons, but, by consent, the matter was submitted to Hon. A. M. Stack, judge presiding at the September term, 1929, who held that the defendant, by first filing answer and replevying the property in this action, was thereafter estopped from setting up his infancy, and judgment was accordingly entered on the verdict for the plaintiff.

The defendant appeals, assigning errors.

H. M. Robins and J. A. Spence, both of Asheboro, for appellant.

STACY, C.J. (after stating the case).

As the defendant was at liberty to avoid the contract in question at any time during his minority, or upon arrival at full age ( Collins v. Norfleet-Baggs, 197 N.C. 659, 150 S.E. 177), we fail to see how he can be estopped from asserting this right by his own acts in filing answer and replevying the property in question prior to the appointment of a guardian ad litem. Hicks v. Beam, 112 N.C. 642, 17 S.E. 490, 34 Am. St. Rep. 521; Tate v. Mott, 96 N.C. 19, 2 S.E. 176. Even if the matter had gone to judgment, without the appointment of a guardian ad litem and during the minority of the defendant, he would still have had his remedy. Hicks v. Beam, supra.

Under the principles announced in Collins v. Norfleet-Baggs, supra, and other cases, the defendant is entitled to disaffirm the contract and recover the consideration paid by him, with the limitation that he must restore whatever part he still retains of that which came to him under the agreement, but he is not required to account for the use or depreciation of the property while in his possession, or for its loss, if squandered or destroyed, for this is the very improvidence against which the law seeks to protect him. Hight v. Harris, 188 N.C. 328, 124 S.E. 623; Greensboro Morris Plan Co. v. Palmer, 185 N.C. 109, 116 S.E. 261; Cole v. Wagner, 197 N.C. 692, 150 S.E. 339; Millsaps v. Estes, 137 N.C. 535, 50 S.E. 227, 70 L. R. A. 170, 107 Am. St. Rep. 496; 14 R. C. L. 238.

The judgment, therefore, should be that the defendant recover of the plaintiff the sum of $298.20, the amount paid under the contract, with interest from October 6, 1925, and that the plaintiff have and recover the property in question in its present condition, but no more. Greensboro Morris Plan Co. v. Palmer, supra.

Nor would it seem that the liability of the sureties on the forthcoming bond should be held to be in excess of the defendant's liability thereunder. The obligation of the sureties on the redelivery bond of the defendant in the instant case is to answer for any default of the principal in said bond, to the extent of $500, for which the infant defendant may be adjudged legally bound. Note, L. R. A. 1917A, 1191.

According to the terms of the bond (which is not in the exact language of the statute, C. S. § 836), it is stipulated: "That if the property *** be returned to the defendant, 'it shall be delivered to the plaintiff, with damages for its deterioration and detention, together with the costs of the action, if such delivery be adjudged and can be had, and if such delivery cannot for any cause be had, that the plaintiff shall be paid such sum as may be recovered against the defendant for the value of the property at the time of the wrongful taking or detention, with interest thereon, as damages, for such taking and detention, together with the costs of this action." D' Garner v. Quakenbush, 188 N.C. 180, 124 S.E. 154, 155, 36 A. L. R. 1095; Hendley v. McIntyre, 132 N.C. 276, 43 S.E. 824; Orange Trust Co. v. Hayes, 191 N.C. 542, 132 S.E. 466; Motor Co. v. Sands, 186 N.C. 732, 120 S.E. 459; Randolph v. McGowans, 174 N.C. 203, 93 S.E. 730; Wallace & Sons v. Robinson, 185 N.C. 530, 117 S.E. 508.

But the defendant, still being a minor, may disaffirm this obligation, as well as the original one. Hight v. Harris, supra. Hence, the extent of the defendant's legal liability is to return so much of the property which came to him under the contract as he still has, without accounting for its use or depreciation while in his possession. Collins v. Norfleet-Baggs, supra. The plaintiff is entitled to judgment de retorno habendo, and no more. Note, 69 L. R. A. 283. The sureties, it will be observed from the tenor of the forthcoming bond, are under obligation to return the property to the plaintiff, "with damages for its deterioration and detention, together with the costs of the action," in case "such delivery (with damages and costs) be adjudged." Hall v. Tillman, 110 N.C. 220, 14 S.E. 745. Therefore, the liability of the sureties would seem to depend upon an adjudication directing ""such delivery," which may not be had against the infant defendant, except as above indicated, simply de retorno habendo. Hendley v. McIntyre, supra; 23 R. C. L. 900.

This interpretation of the liability of the sureties...