McCoy v. Lassiter

• Citation: 95 N.C. 88
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 October 1886
• Parties: JOHN F. MCCOY v. JOSEPH LASSITER.

95 N.C. 88

JOHN F. MCCOY

v.JOSEPH LASSITER.

Supreme Court of North Carolina.

October Term, 1886.

This was an action for the recovery of a horse, and damages, tried before Avery, Judge, at the Fall Term, 1885, of LENOIR Superior Court.

The plaintiff alleged that he was the owner, and entitled to the possession of the horse, of which he had been wrongfully deprived by the defendant.

The defendant denied these allegations.

The plaintiff testified that the horse was his property, and had been taken unlawfully from his possession, by the defendant Lassiter; that the defendant had signed a claim and delivery bond, as his surety, in an action brought by him against one Carman; that nothing was said by him or Lassiter about delivering the horse in controversy to defendant, when he signed the bond for him, and the horse was not then in his (Lassiter's) stable.

Lassiter testified that the plaintiff applied to him to become his surety on a claim and delivery bond, and at the time, having his horse in his stable to be fed, the plaintiff said to him, “you take this horse (pointing to the horse in controversy), and keep him till the suit is decided”; that he did not, at that time, agree to become surety, but they went to the store of Stanly, about one hundred yards off, and there he and Stanly signed the bond, and he then loaned the horse to the plaintiff, and he might have said, he loaned him to plaintiff until the suit was decided.

Stanly testified, that plaintiff and defendant came into his store, and plaintiff said he wanted him and Lassiter to sign his bond, and he would turn over the horse in controversy, and if the suit should go against him, and his sureties have the costs to pay, that he and Lassiter could sell the horse and pay it; that they thereupon signed the bond, and after it was signed, Lassiter said to plaintiff, “we will loan you this horse.”

Carman testified to the same effect. He stated, that plaintiff asked Lassiter to go on his bond; Lassiter said, “I don't want to go on any body's bond unless I am secured.” McCoy said, “I will pawn my horse and buggy;” the horse was then in the stable. Lassiter then went up to Stanly's store and said to Stanly that plaintiff proposed to pawn his horse and buggy. Stanly said “all right,” and they signed the bond; afterwards Lassiter turned around and said to plaintiff, as they went out, “that he would loan him the horse.”

The Court instructed the jury:

1. That it appeared from the testimony, that the title to the horse was in the plaintiff, when the defendant and Lassiter signed the bond, in the case of McCoy v. Carman.

2. That in no view of the testimony, could the jury find that the horse was put in pledge to Lassiter, or that the legal title passed from McCoy to Lassiter, and the jury must find the first issue in favor of plaintiff. Defendant excepted. Verdict and judgment for plaintiff, and defendant appealed.

Mr. W. R. Allen, for the plaintiff .

Mr. Geo. Rountree, for the defendant .

ASHE, J. (after stating the case).

We think it is manifest from the testimony in the case, that the plaintiff intended to give to the defendant Lassiter and Stanly, the sureties on his bond, a lien on the horse in controversy. And it is equally manifest, that Lassiter supposed that he was secured by the transaction.

The evidence in the case was entirely sufficient to establish an agreement between the parties, that the defendant should have a lien on the horse, for his indemnification as plaintiff's surety; for the plaintiff, in the first instance, while the horse was in defendant's stable, made the proposition to Lassiter to sign the bond, as his surety. “You take the horse (pointing to the horse in controversy) and keep him until the suit is decided.” Then, at Stanly's store, the plaintiff renewed the proposition, by saying, “he wanted the defendant and Lassiter to sign his bond, and he would turn over the horse, and if the suit should go against him, and his sureties had the costs to pay, that defendant and Stanly could sell the horse and pay it.” Stanly and the defendant did sign the bond, and their doing so, was an acceptance of the plaintiff's proposition, and was as binding between the parties as if it had been agreed upon by them, in express terms. But what was the nature of the agreement? It was, that the defendant and Stanly should have a lien upon the horse, to secure their indemnity. There can be no question about that. But what kind of...