McCullers v. Cheatham

• Decision Date: 24 September 1913
• Citation: 79 S.E. 306,163 N.C. 61
• Parties: McCULLERS et al. v. CHEATHAM et al.
• Court: North Carolina Supreme Court

79 S.E. 306

163 N.C. 61

McCULLERS et al. v. CHEATHAM et al.

Supreme Court of North Carolina

September 24, 1913

Appeal from Superior Court, Johnston County; Carter, Judge.

Action by D. H. McCullers and others against Claude Cheatham and others. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

Where a landlord contracted to buy the tenant's share of a crop of tobacco, the landlord held estopped to insist that the bringing of an action for the tobacco by the tenant and his mortgagee was a rescission by the contract where it was not treated by him as a rescission.

This was originally an action for the recovery of a lot of leaf tobacco raised by E. T. Parham on defendant's farm, known as the "Widow Whitley's place." Parham was the tenant of defendants in 1910, cultivating the farm on shares. Plaintiff, D. H. McCullers, made advances to him in money and supplies, under a contract between them. Defendants bought Parham's one-half share of the tobacco raised on the farm for $400 but never took possession of it. Plaintiff seized it under the process but surrendered it to defendants in a short while, and the latter accepted it. Parham had given plaintiff D. H. McCullers a mortgage on the crop for the advances and afterwards assigned his interest in the crop to him. This action was finally turned into one for an accounting between the parties and was referred for that purpose. The referee found the facts in favor of plaintiffs and reported that defendants were indebted to plaintiff D. H. McCullers in the sum of $270.88. This report was approved and confirmed by the court, upon exceptions thereto filed by the defendants, save as to two items allowed the plaintiff by the referee, which were stricken from the amount found by the referee to be due and reduced the said amount to $196.39. There was judgment for this amount and costs, including one-half of the referee's fee.

T. T Hicks, of Henderson, for appellants.

Abell & Ward, of Smithfield, and Jas. H. Pou, of Raleigh, for appellees.

WALKER J. (after stating the facts as above).

The misfortune of the defendants in this case is that the referee has found all the essential facts against them, and when these findings were reviewed and approved by the judge, upon consideration of the report and the exceptions, there being evidence to warrant them, we are precluded from changing the report in this respect but must decide the case upon the findings of fact, as made by the referee and approved by the court. We recently stated the rule of practice in this respect: "We will not review the referee's findings of fact, which are settled, upon a consideration of the evidence and approved by the judge, when exceptions are filed thereto, if there is some evidence to support them. Boyle v. Stallings, 140 N.C. 524, 53 S.E. 346; Harris v Smith, 144 N.C. 439, 57 S.E. 122, and cases cited; Thornton v. McNeely, 144 N.C. 622, 57 S.E. 400; Frey v. Lumber Co., 144 N.C. 759 ." Thompson v. Smith, 160 N.C. 256, 75 S.E. 1010. The assignments of error in the case are nearly all addressed to the findings of fact, and, as there is no question of law or legal inference involved in them, there is nothing that we can review or reverse.

The defendants do contend, though, that, by seizing the tobacco under the requisition issued in this case, the plaintiffs rescinded the sale of it by Parham to them, and consequently that they are liable only for the real value of the same instead of $400, the contract price and the amount charged against them in the account by the referee for the tobacco. But not so as we view the facts. The sale of the tobacco was a cash transaction, as appears, and defendants had not paid for it nor taken possession of it. The title, therefore, had not vested in them. They had merely a contract of sale. Millhiser v. Erdman, 98 N.C. 292, 3 S.E. 521, 2 Am St. Rep. 334; s. c., 103 N.C. 27, 9 S.E. 582; Railroad Co. v. Barnes, 104 N.C. 25, 10 S.E. 83. Besides, the defendants elected not to treat the plaintiff's action as a rescission of the contract. Plaintiffs instructed the sheriff to deliver the tobacco to defendants, and this was done and it was received by them without any objection. They did not think at that time to insist on a rescission and to refuse to take the property but rather elected to stand by it and avail themselves of it. Having done so, we cannot hear them, when they now take the opposite position, by...