Moose v. Barrett

• Decision Date: 03 November 1943
• Docket Number: 378.
• Citation: 27 S.E.2d 532,223 N.C. 524
• Parties: MOOSE v. BARRETT.
• Court: North Carolina Supreme Court

27 S.E.2d 532

223 N.C. 524

MOOSE v. BARRETT.

No. 378.

Supreme Court of North Carolina

November 3, 1943

Civil action to recover cotton weigher's compensation for baled cotton purchased by the defendant at Midland in Cabarrus County.

Plaintiff alleges that he is entitled to recover 10 cents for each and every bale of cotton purchased by the defendant in Cabarrus County, outside the City of Concord, and not settled for or reported to him during the three years next immediately preceding the institution of the action. The defendant was a merchant at Midland and a buyer of cotton. The amount is not in dispute. It was agreed that the issue of indebtedness should be answered $202.20, "if entitled to anything."

It is admitted that none of the baled cotton in question was weighed by the plaintiff, and that no reports were made to him in respect thereof.

From verdict and judgment for plaintiff, the defendant appeals assigning errors.

Hartsell & Hartsell, of Concord, for appellant.

L.E Barnhardt, of Concord, for appellee.

STACY Chief Justice.

The question sought to be presented is whether the cotton weigher of Cabarrus County can recover of a private citizen for baled cotton bought or weighed by him in the county, outside the City of Concord, where no services are rendered by the cotton weigher in connection with the cotton so bought or weighed.

It is provided by Chap. 238, Public Laws 1895, as amended by Chap 95, Public-Local Laws 1919, that the cotton weigher of Cabarrus County "shall receive as compensation for his services the sum or sums to be collected and paid as hereinafter provided: Every person, firm or corporation who buys baled cotton in the city of Concord shall pay to the said cotton weigher twenty cents per bale for all cotton bought by him in said city; *** and every person, firm or corporation who buys baled cotton in Cabarrus County, outside of the city of Concord, shall pay to the said cotton weigher of Cabarrus County ten cents per bale for each bale of cotton bought by him or it, or weighed or caused to be weighed for manufacture, shipment or transportation; and it shall be lawful for the said person buying said cotton to retain from the amount of money due the seller or owner of such cotton the sum of five cents for each bale so bought, weighed or caused to be weighed; and it shall be the duty of each and every person, firm or corporation who buys or weighs any baled cotton in said county, outside of the City of Concord as and for any of the purposes hereinbefore set out, to weigh said cotton at its true and just weight *** and shall make a detailed report of the cotton so bought or weighed by him or it to the cotton weigher of Cabarrus County on the first day of each month, *** and settle with and pay over to said cotton weigher the amount due for the cotton bought or weighed by him or it; and any person wilfully and wantonly violating the provisions of this section shall be guilty of a misdemeanor; and the said cotton weigher shall have a lien on any cotton weighed by him or other person as hereinbefore provided."

The foregoing provisions were repealed by Chap. 489, Public Laws 1943, and others substituted in their stead, but it is conceded they were in effect at the times for which the plaintiff sues.

The plaintiff rendered no services in connection with the transactions for which he claims compensation. He did not weigh any of the cotton in question, nor were any reports made to him in connection therewith. He is given a lien on the baled cotton bought or weighed by the defendant at Midland in Cabarrus County, but he is not seeking to enforce the lien. His action is to hold the defendant personally liable for his "compensation" of 10 cents for each and every bale of cotton so bought or weighed by the defendant. Wilful and wanton failure on the part of the defendant to settle with the cotton weigher or to report his transactions is made indictable, State v. Tyson, 111 N.C. 687, 16 S.E. 238, but no civil personal liability appears to be prescribed therefor, certainly none ipsissimis verbis. Intendant v. Sorrell, 46 N.C. 49. The case is not one of common-law origin. No such right as here asserted existed at common law. All of plaintiff's rights and remedies are statutory. Noland Co. v. Board of Trustees, 190 N.C. 250, 129 S.E. 577; 1 Am.Jur. 411. The legislation not only creates the liability upon which plaintiff sues, but also prescribes the remedies for its enforcement. Morganton v. Avery, 179 N.C. 551, 103 S.E. 138; Seaboard Air Line R. Co. v. Brunswick County, 198 N.C. 549, 152 S.E. 627.

There is no allegation that the defendant in buying the cotton in question retained five cents a bale from the amount due the seller, or that such sum, if retained, would belong to the plaintiff. Hill v. Stansbury, 223 N.C. 193, 25 S.E.2d 604. Moreover, it would seem that the remedies prescribed by the statute were intended to be exclusive. Expressio unius est exclusio alterius. McCotter v. Reel, N.C., 27 S.E.2d 149; Moffitt v. Davis, 205 N.C. 565, 172 S.E. 317. "Where a right is given, and a remedy provided by statute, the remedy so provided must be pursued". People v. Craycroft, 2 Cal. 243, 56 Am.Dec. 331; 25 R.C.L. 1058; 1 Am.Jur. 410. Evidently the General Assembly did not regard the "amount due for the cotton bought or weighed" as a debt, since it provided criminal sanctions in case of wilful and wanton failure to comply with the provisions of the statute. "There shall be no imprisonment for debt in this state, except in cases of fraud". Const. Art. I, sec. 16.

The general rule is...