Parker v. First Citizens Bank & Trust Co.
| Decision Date | 24 November 1948 |
| Docket Number | 452 |
| Citation | 50 S.E.2d 304,229 N.C. 527 |
| Parties | PARKER et ux. v. FIRST CITIZENS BANK & TRUST CO. |
| Court | North Carolina Supreme Court |
Civil action to recover proceeds of sale of automobile.
On 16 June 1947, plaintiffs offered for sale at Mann's Public Auction their 1947 Studebaker automobile. A. G Stevens became the purchaser. He gave his check in the sum of $1825, drawn on the defendant bank, in payment of the purchase price and the certificate of title was transferred and assigned to him.
On 17 June, Stevens sent the automobile to High Point for resale. On that day at 10:30 a. m., he committed suicide. Later in the day his agent, Wilbur Sanders, sold the automobile in High Point for $1870 cash.
On 18 June, plaintiffs presented the Stevens check to defendant bank for payment, which payment was refused. The check has not been paid.
On 19 June, defendant, having qualified as administrator of the estate of Stevens, demanded of Sanders the proceeds of the sale of the automobile made in High Point, and was paid $1853.05, representing the sale price, less costs.
The plaintiffs instituted this action to recover $1853.05, the amount received by defendant as the proceeds of the sale of said automobile. When the cause came on for hearing, the court below submitted appropriate issues and gave the jury peremptory instructions thereon in favor of plaintiffs. The jury answered the issues as instructed. From judgment on the verdict, defendant appealed.
Arch T. Allen and T. Lacy Williams, both of Raleigh, for plaintiff appellees.
William T. Hatch, of Raleigh, for defendant appellant.
The sale of the automobile to defendant's intestate being a cash transaction, payment of the purchase price by check constituted a conditional payment and, as between the parties, transfer of title was conditioned upon the payment of the check by the bank upon which it was drawn. As the check was dishonored and not paid, no title passed to the purchaser. The property remained the property of the plaintiffs. Hayworth v. Philadelphia Life Insurance Co., 190 N.C. 757, 130 S.E. 612, and cases cited; Dewey v. Margolis, 195 N.C. 307, 142 S.E. 22; Andrews-Cooper Lumber Co. v. Hayworth, 205 N.C. 585 172 S.E. 194; South v. Sisk, 205 N.C. 655, 172 S.E 193; Barksdale v. Banks, 206 Ala. 569, 90 So. 913; National Bank of Commerce v. Chicago, B. & N. R. Co., 44 Minn. 224, 46 N.W. 342, 9 L.R.A. 263, 20 Am.St.Rep. 566; Lee v. Marion Nat. Bank, 167 S.C. 168, 166 S.E. 148, rehearing, page 160; Thomas v. Prudential Insurance Co., 4 Cir., 104 F.2d 480; Ratliff v. St. Paul Fire & Marine Insurance Co., 207 Ky. 492, 269 S.W. 546; Publicker Commercial Alcohol Co. v. Harger, 129 Conn. 655, 31 A.2d 27; Birmingham v. Rice Bros., Iowa, 26 N.W.2d 39; First National Bank v. Griffin, 31 Okl. 382, 120 P. 595, 49 L.R.A.,N.S., 1020; Clark v. Hamilton Diamond Co., 209 Cal. 1, 284 P. 915; Towey v. Esser, 133 Cal.App. 669, 24 P.2d 853; Manget v. National City Bank, 168 Ga. 876, 149 S.E. 213; 55 C.J. 579; 46 A.J. 644; Vold on Sales, 167, 174; Waite on Sales, 2d Ed. 283. See also Anno., 31 A.L.R. 578 and 54 A.L.R. 526, where numerous cases are cited.
The authority of the agent of the purchaser to resell the automobile terminated at the death of his principal. Restatement of Law, Agency, sec. 120; 2 A.J. 52. Resale by him after the death of his principal constituted a conversion of plaintiffs' property. By reason of this conversion, plaintiffs had the election of either one of two remedies. They could sue to recover the specific property or they could ratify the sale and sue to recover the proceeds thereof. 18 A.J. 163.
As the plaintiffs transferred and delivered to the purchaser the certificate of title to the automobile and thus placed him and his agent in the position of apparent owners, it may be that they are estopped to pursue the property itself and recover it from the last vendee. Be that as it may, the defendant, who merely stands in the shoes of its intestate received the proceeds of the sale with notice and holds the fund for the use and benefit of plaintiffs. Woodbury v. Nu-Enamel Corp., 215 N.C. 790, 1 S.E.2d 566; Porter v. Alexander, 195 N.C. 5, 141 S.E. 343; Sever v. McLaughlin, 79 N.C. 153; Towey v. Esser, supra; Birmingham v. Rice Bros., supra; Manget v. National City Bank, supra; First National Bank v. Griffin, supra; Lee v. Marion Nat. Bank, supra; Nelson v. Conroy Sav. Bank, 196 Iowa 391, 194 N.W. 204; Lewis v. James McMahon & Co., 307 Mo. 552, 271 S.W. 779; ...
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