Merch.S' Nat. Bank v. Carolina Broom Co

• Decision Date: 05 November 1924
• Docket Number: (No. 265.)
• Citation: Merch.S' Nat. Bank v. Carolina Broom Co, 125 S.E. 12 (N.C. 1924)
• Parties: MERCHANTS' NAT. BANK. v. CAROLINA BROOM CO. et al.
• Court: North Carolina Supreme Court

125 S.E. 12

MERCHANTS' NAT. BANK.

v.CAROLINA BROOM CO. et al.

(No. 265.)

Supreme Court of North Carolina.

Nov. 5, 1924.

(188 N. C.)

Appeal from Superior Court, Wake County; Grady, Judge.

Action by Merchants' National Bank against Carolina Broom Company and others. Judgment for plaintiff, and defendant I. W. Howell appeals. New trial.

Plaintiff alleges that on July 17, 1922, defendant Carolina Broom Company, a North Carolina corporation, executed, and defendants George W. Byars, W. F. Brower, and W. H. Crisco indorsed, a note, payable to the order of the Merchants' National Bank for $1,500, due and payable on September 1, 1922; that said note has not been paid.

Plaintiff further alleges that at the date of the execution of said note defendant Carolina Broom Company deposited with plaintiff, as security for the payment of same, a chattel mortgage on all the personal property of said company, which had been duly recorded; that by virtue of said chattel mortgage it is now the owner and entitled to the possession of the property described in said mortgage; that said property is now in the possession of defendant I. L. Howell, whohas refused to surrender the same upon demand of plaintiff.

Defendants, other than I. L. Howell, filed no answer; defendant Howell, in his answer, admitted that the property was in his possession, alleging that he bought the same from the indorsers of the note set out in the complaint, without notice of the claim of the plaintiff; he denied that plaintiff was the owner or entitled to possession of the property.

The issues submitted to the jury, with answers thereto, are as follows:

(1) In what amount, if anything, are defendants Geo. W. Byars, W. H. Crisco, W. F. Brower, and Carolina Broom Company indebted to plaintiff on the note sued on? Answer: $1,500, with interest from September, 1922.

(2) What was the value of the personal property described in the chattel mortgage on the date of seizure under claim and delivery? Answer: $3,000.

(3) Is the plaintiff the holder in due course of the chattel mortgage referred to in the complaint? Answer: Yes.

No exception appears in the case on appeal to these issues, nor does it appear that any other issue was tendered by defendant.

Judgment was rendered upon this verdict that plaintiff recover of defendants Carolina Broom Company, Geo. W. Byars, and W. F. Brower (defendant Crisco not having been served with summons) primarily the sum of $1,500. interest and costs, and of defendant 1. L. Howell and S. M. Powell, surety on his undertaking for the replevy of the personal property, seized by the sheriff under a writ of claim and delivery issued in this action, the sum of $3,000 to be discharged upon the payment of $1,500, interest and costs, their liability for said sum being declared secondary.

From this judgment defendant I. L. Howell appealed.

B. Ray Olive, of Fuquay Springs, and S. Brown Shepherd, of Raleigh, for appellant.

Albert L. Cox and Carroll W. Weathers, both of Raleigh, for appellee.

CONNOR, J. The court instructed the jury that, if they found the facts to be as testified by all the witnesses, they should answer the first issue, "$1,500, with interest from September 1, 1922"; the second issue, "$3,000"; and the third issue, "Yes." Defendant excepted to this instruction, and assigns same as error. Defendant also excepted to the judgment signed, and assigns same as error.

The vital issue between plaintiff and defendant I. L. Howell was not submitted to the...