Moseley v. Johnson
| Decision Date | 03 April 1907 |
| Citation | 56 S.E. 922 |
| Parties | 144 N.C. 257, 144 N.C. 274 v. JOHNSON et al. [a1] MOSELEY et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Sampson County; E. B. Jones, Judge.
Action by the state, on the relation of Mary A. Moseley and others against W. A. Johnson, administrator, and others. From the judgment, both plaintiffs and defendants appeal. Affirmed on both appeals.
An exception to issues submitted to a jury in an equity suit cannot be sustained, where those submitted cover every phase of the case, and under them defendants had opportunity to present evidence of every defense relied on.
Stevens Beasley & Weeks and George E. Butler, for plaintiffs.
John D Kerr, F. R. Cooper, and A. C. Davis, for defendants.
Plaintiffs' Appeal.
This is the plaintiffs' appeal in the cause above entitled and disposed of at this term. The opinion of the court in the defendants' appeal is referred to for the facts of the case.
The plaintiffs except and appeal:
1. Because the court below refused to charge the defendant the Fidelity & Guaranty Company with interest on the $30,000 penalty of the administration bond from the 7th day of January, 1902, the date of the original summons in this action. We have touched briefly on this matter in considering the defendants' appeal, and held that the superior court properly allowed interest on the $30,000 from the date of the rendition of the judgment against the surety, not because interest is ever allowable upon a mere penal obligation, but because when judgment is rendered for the full amount of the penalty, as in this case, the penalty becomes merged in the judgment, and the latter bears interest from the date it is rendered. If the judgment had been given, as is frequently the case, for the full sum of the bond, to be discharged upon the payment of a smaller sum, the latter would bear interest from the date of the judgment, and there would be no interest accruing on the penalty. The plaintiffs, however, contend that the penal obligation itself bears interest from date of summons at least, if not from date of the first defalcation. The learned counsel for plaintiffs cite authorities from other states for the purpose of sustaining their contention. We think the law is held otherwise in this state. The statute law of North Carolina expressly excepts "money due on penal bonds" from the list of interest-bearing contracts. Revisal 1905, § 1954. It has been expressly held by this court that penal obligations do not bear interest; the court saying: "But there is error in charging interest on the penalty, for as such it cannot be enlarged beyond its full amount." Davenport v. McKee, 98 N.C. 508, 4 S.E. 545. "Stipulated damages" are likened somewhat to penal obligations, and therefore this court has held that ""the party, who sues to recover the stipulated damages, is not entitled to claim interest even from the date of his writ." Devereux v. Burgwin, 33 N.C. 490. The penal sum in official bonds is intended to fix the ultimate liability of the sureties, beyond which it cannot be increased. To permit it to bear interest would be to increase the hazard beyond their contract and the sum "nominated in the bond." We think his honor was correct in declining to sign the judgment tendered by plaintiffs.
2. It is contended by plaintiffs that the superior court erred, "for that his honor signed the judgment giving to A. C. Davis the recovery of W. M. Peden and Howard Peden, two of the distributees, out of the defendants, the United States Fidelity & Guaranty Company, when the record shows that said A. C. Davis is attorney for said company." It appears that, pending this suit, Davis purchased from W. M. Peden and Howard Peden their distributive shares in W. N. Peden's estate, paid them therefor a price satisfactory to themselves, and took a formal legal assignment of their entire interests. Davis moved before the referees to be permitted to come in and be made a party to the action. This was refused by the referees and allowed by his honor in the superior court. While such proceeding may be regarded as unusual upon the part of an attorney of record, yet we see in it nothing of which the plaintiffs, appellants, can justly complain. They are not entitled to any part of the distributive shares of W. M. and Howard Peden, and their own shares are not in the least diminished by such assignments. If the two Pedens chose to sell their distributive shares to the defendant company's attorney for "cash in hand," rather than await the rather doubtful result of a lawsuit, we cannot see that it is any of appellants' concern. Davis was not the attorney for the Pedens, nor did he hold any relation of trust or confidence to them which legally forbade such purchase, so far as the record discloses. We do not think, and it is not even suggested, that upon settlement Davis expects to charge his client for such distributive shares any greater sum than he actually paid for the same. Doubtless, in making the purchase he thought he was acting in the interest of his clients. Should he attempt to collect from his own clients more than he paid (an altogether unlikely supposition), they have their remedy. It appears that W. M. Peden was a plaintiff in the action and represented in common with other plaintiff by counsel of record, and it is contended that therefore Davis could not properly acquire W. M. Peden's interest pending the suit. Such conduct may raise a question of "professional etiquette," over which we have no jurisdiction; but we fail to see how it invalidates the legality of the assignment.
Plaintiffs, appellants, will be taxed with the costs of their appeal.
Affirmed.
Defendants' Appeal.
This action is brought by the relators, certain of the distributees of W. N. Peden, against the administrator of said Peden and the surety on his administration bond, the United States Fidelity & Guaranty Company, for an account and settlement, and to recover the sum due each distributee. Those of the distributees who are not parties plaintiff are made defendants. The cause was referred upon motion of plaintiffs to three referees, to which order defendants duly excepted in apt time. The referees reported at length, and find a balance due by the administrator of $31,265.20, August 7, 1905, to which report the defendant the administrator and surety company filed numerous exceptions, demanded a trial by jury of the issues raised by the exceptions, and tendered along with their exceptions certain issues arising thereon.
The cause came on to be heard before his honor, Judge Jones, at October term, 1906, of the superior court of Sampson county, who submitted the following issues to the jury, to wit:
"(1) When did James A. Peden die? Answer: September, 1894.
(2) When did W. N. Peden die? Answer: November 21, 1895.
(3) When did the defendant W. A. Johnson administer upon the estate of W. N. Peden and file his bond with the United States Fidelity & Guaranty Company, as surety? Answer: November 8, 1897.
(4) Did the defendant W. A. Johnson, prior to the time of his administration, receive from W. N. Peden, as attorney in fact and agent of said W. N. Peden, the choses in action, cash, notes, bonds, stocks, debentures, coupons, and other evidences of debt devised and bequeathed to W. N. Peden by James A. Peden? If so, when? Answer: Yes: October 18 or 19, 1894.
(5) If so, did W. A. Johnson, as such agent and attorney in fact, retain the custody, control, and management of said securities from their reception during the lifetime of W. N. Peden and up to the time he administered upon the said estate? Answer: Yes.
(6) What was the cash value of choses in action, bonds, stocks, notes, checks, cash, and coupons inventoried by the defendant W. A. Johnson? Answer: $38,045.19; $37,245.19, interest on Ocean Steamship bonds, $800.
(7) What was the value of the personal property, cash, choses in action, which went into the hands of W. A. Johnson as attorney in fact and agent of W. N. Peden and which were omitted from the inventory filed by the defendant? Answer: $20,424.
(8) Was the proceeds of the sale of the bonds of the Lehigh & Wilkesbarre Coal Company collected by W. A. Johnson and turned over or paid out under the direction of W. N. Peden during his lifetime? Answer: Yes.
(9) Was the payment of the $2,888.70 to F. C. Sollee by W. A. Johnson made by consent and direction of W. N. Peden? Answer: Yes.
(10) Was the disbursements other than to the distributees, as appears on the inventory and return of W. A. Johnson's administration to the clerk, proper and just? Answer: Yes.
(11) What amount has the defendant W. A. Johnson retained as commissions? Answer: $2,135.45.
(12) Did the intestate, W. N. Peden, prior to his death, sell and convey or give to W. A. Johnson the Chicago, Rock Island Railroad bonds, $11,000, and the Chicago, Milwaukee & St. Paul Railroad bonds, $3,000.00? Answer: Yes.
(13) Did the intestate W. N. Peden, sell and convey or give to W. A. Johnson the $4,500 United States bonds? Answer: No.
(14) What amount, if any, of interest on notes and bonds, debentures, and stock inventoried by W. A. Johnson, did said Johnson receive and fail to return? Answer: Nothing.
(15) Was the defendant W. A. Johnson solvent on the 8th day of November, 1897, at the time he took out letters of administration? Answer: Yes.
(16) If the said W. A. Johnson was solvent on the 8th day of November, 1897, what was he worth in excess of his personal property, exemptions, homestead, and other liabilities? Answer: $30,000.
(17) What amount has the defendant W. A. Johnson, administrator paid to the respective distributees of said estate? Answer: To Mary A. Moseley $4,350; Anna C. Johnson, $2,500; Ida C. Hubbard,...
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