Mcleod v. Nimocezs

• Decision Date: 29 March 1898
• Citation: 122 N.C. 437,29 S.E. 577
• Parties: McLEOD . v. NIMOCEZS.
• Court: North Carolina Supreme Court

29 S.E. 577

122 N.C. 437

McLEOD .

v.NIMOCEZS.

Supreme Court of North Carolina.

March 29, 1898.

jcdgment by default—tkover and conversion —Damages—Assessm ent.

1. Under Code Civ. Proc. § 386, which provides that in all actions except those on express or implied contract to pay a liquidated sum, when defendant fails to answer, judgment by default and inquiry may be had on proof of service of summons, in an action for converting cotton and embezzling the proceeds, where defendant failed to answer, a judgment by default might be rendered against him, which would be final as to the conversion and embezzlement.

2. Where a judgment for damages is given by default, the amount must be determined by proof.

Appeal from superior court, Eobeson county; Mclver, Judge.

Action by A. H. McLeod against E. M. Nimocks. Judgment for plaintiff, and defendant appeals. Modified.

T. A. McNeill, for appellant.

N. A. McLean, for appellee.

MONTGOMEEY, J. The plaintiff, in his complaint, alleged that, under an agreement with the defendant, he delivered to him 141 bales of cotton, to the end that the defendant might, as the agent of the plaintiff, have the cotton stored in a warehouse in Fayetteville, for the account of the plaintiff, who was to pay the warehouse charges; that the defendant never had any authority to sell the cotton, or any part of it; that the defendant, having received the cotton, did not store it in the warehouse, although he frequently wrote the plaintiff that he was in possession of the cotton, and that it was stored in the warehouse; that the defendant well knew that these statements in the letters were false; that on the 20th May, 1897, the defendant, in answer to a letter written to him by the plaintiff as to where the cotton was, wrote, "I let the cotton go, holding myself responsible for its value, at the time you might be inclined to close it out;" that such disposal of the cotton by the defendant was without the knowledge or consent of the plaintiff; and that the defendant willfully and wrongfully converted the cotton, and knowingly, willfully, and fraudulently misapplied the proceeds thereof to his own use, by which the plaintiff was damaged to the amount of $5,600. Upon the issuing of the summons by the clerk, an affidavit, which was in full compliance with the requirements of the law, was made by the plaintiff, to procure the arrest of the defendant. The order of arrest was made and served, and the defendant gave bond as allowed by the statute, with two sureties, A. H. Slocumband Q. K. Nimocks. The complaint was verified and filed according to law, and at the appearance term, the defendant having filed no answer, a judgment by default and inquiry was entered up against him. In the judgment it was adjudged that the defendant, while the relation of principal and agent existed between the plaintiff and himself, unlawfully, willfully, and fraudulently embezzled and converted to his own use the 141 bales of cotton, and that the plaintiff recover of the defendant the value of the cotton, with interest from the time of its conversion. The cause was continued until the next term of the...