Peek v. Wachovia Bank & Trust Co.

• Decision Date: 13 April 1955
• Docket Number: No. 105,105
• Citation: 86 S.E.2d 745,242 N.C. 1
• Court: North Carolina Supreme Court
• Parties: Earl PEEK v. WACHOVIA BANK & TRUST COMPANY and Sherman Moffitt.

Page 745

86 S.E.2d 745

242 N.C. 1

Earl PEEK v. WACHOVIA BANK & TRUST COMPANY and Sherman Moffitt.

No. 105

Supreme Court of North Carolina.

April 13, 1955

Uzzell & Dumont, Asheville, for defendant Wachovia Bank & Trust Co., appellant.

Fisher & Fowler and Ward & Bennett, Asheville, for plaintiff, appellee.

JOHNSON, Justice.

The appellant's assignments of error raise questions relating to (1) the legal sufficiency of the description contained in the chattel mortgage made by the defendant Moffitt to the plaintiff, (2) the refusal to direct a verdict on the issue of estoppel, (3) the reception and exclusion of evidence, (4) the refusal to submit an issue of subrogation, and (5) the charge of the court. We discuss the assignments in that order.

1. The sufficiency of the description contained in the plaintiff's chattel mortgage.--First, the appellant urges that its motion for judgment as of nonsuit should have been allowed on the ground that the description '1948 Auto-Car (Sleeper Cab Tractor) Motor No.--' contained in the chattel mortgage sued on by the plaintiff is fatally defective. However, we are inclined to the other view. The description, when considered in connection with the evidence that Moffitt owned only one tractor unit, meets identification requirements as approved by authoritative decisions of this Court. Twin City Motor Co. v. Rouzer Motor Co., 197 N.C. 371, 148 S.E. 461. See also Spivey v. Grant, 96 N.C. 214, 2 S.E. 45. The decisions cited by the appellant are factually distinguishable.

Next, by Assignment of Error No. 35 the appellant insists that in any event the sufficiency of the evidence aliunde tending to identify the Auto Car tractor should have been submitted to the jury as an open question, rather than under the peremptory instruction as given in favor of the plaintiff on the second issue. The challenged instruction is in material part as follows: '* * * if you find the facts to be as all the evidence tends to show, you would answer the second issue Yes, otherwise you would answer it No.' The rule is that where all the evidence bearing on an issue points in the same direction and justifies as the single inference to be drawn therefrom an answer in favor of the party having the burden of proof, an instruction to find in support of such inference if the evidence is found to be true, will be unheld. This is a peremptory instruction, as distinguished from a directed instruction. Commercial Solvents, Inc., v. Johnson, 235 N.C. 237, and cases cited on page 243, 69 S.E.2d 716, 721. Here, all the evidence in the case tends to show that the plaintiff owned only one tractor. Hence the charge as given is free of legal error. The from of the instruction is approved by numerous decisions of this Court. See Commercial Solvents, Inc., v. Johnson, supra. See also Shelby, City of, v. Lackey, 236 N.C. 369, 72 S.E.2d 757; Reynolds v. Earley, 241 N.C. 521, 85 S.E.2d 904.

2. The refusal to direct a verdict in favor of the defendant Bank on the issue of estoppel.--The general principles governing the operation of the doctrine of equitable estoppel as applicable to this case are set out in Hawkins v. M. & J. Finance Corp., 238 N.C. 174, at pages 177, 178 and 179, 77 S.E.2d 669, 672, 673, as follows:

'* * * in determining whether the doctrine of estoppel applies in any given situation, the conduct of both parties must be weighed in the balances of equity and the party claiming the estoppel no less than the party sought to be estopped must conform to fixed standards of equity. As to these, the essential elements of an equitable estoppel as related to the party estopped are: (1) Conduct which amounts to a false representation or concealment of material facts, or at least, which is reasonably calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party afterwards attempts to assert; (2) intention or expectation that such conduct shall be acted upon by the other party, or conduct which at least is calculated to induce a reasonably prudent person to believe such conduct was intended or expected to be relied and acted upon; (3) knowledge, actual or constructive, of the real facts. As related to the party claiming the estoppel, they are: (1) lack of knowledge and the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party sought to be estopped; and (3) action based thereon of such a character as to change his position prejudicially. North Carolina Self-Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E.2d 889; American Exchange Nat. Bank v. Winder, 198 N.C. 18, 150 S.E. 489; Boddie v. Bond, 154 N.C. 359, 70 S.E. 824; 19 Am.Jur., Estoppel, Sections 42 and 46. * * *

'However, he who claims the benefit of an equitable estoppel on the ground that he has been misled by the representations of another must not have been misled through his own want of reasonable care and circumspection. And where the element of actual fraud is absent, the effect of an estoppel ordinarily will be denied where the party claiming it was put on inquiry as to the truth and had available the means for ascertaining it. 19 Am.Jur., Estoppel, Sec. 86.'

The Bank pleaded equitable estoppel by way of affirmative defense. Therefore, on that issue the burden of proof was upon the defendant Bank. Aldridge Motors v. Alexander, 217 N.C. 750, 9 S.E.2d 469. The Bank moved for a directed instruction on the issue. The motion was properly overruled. The rule is well established with us that a directed instruction in favor of the party having the burden of proof is forbidden. McCracken v. Clark, 235 N.C. 186, 69 S.E.2d 184; Haywood v. Home Ins. Co., 218 N.C. 736, 12 S.E.2d 221. See also Bryant v. Murray, 239 N.C. 18, 25, 79 S.E.2d 243, 248.

Conceding arguendo that the court below treated the Bank's motion as being intended as a motion for a peremptory, rather than a directed, instruction, even so, the ruling was proper. It is only when a single inference can reasonably be drawn from undisputed facts that the question of estoppel is one of law for the court to determine. Mason v. Williams, 53 N.C. 478; American Exchange Nat. Bank v. Winder, supra; 19 Am.Jur., Estoppel, section 200. See also Hawkins v. M. & J. Finance Corp., supra.

Here the evidnce bearing on the issue of estoppel was conflicting and susceptible of diverse inferences. While the evidence of the defendant Bank was sufficient to justify the inference that it relied upon and was misled by the representations of the plaintiff, nevertheless other phases of the evidence justify the opposite inference.

3. The reception and exclusion of evidence.--By Assignments Nos. 4, 5, 6, and 16, based on exceptions bearing the same numbers, the defendant Bank urges that the trial court erred in permitting the plaintiff Peek to testify over objection that when he executed the assignment of the Certificate of Title to Moffitt at the Bank (1) he executed it in blank, (2) he did not read it, and (3) the assignment was not notarized at the time of execution. The Bank urges that this line of testimony was violative of the parol evidence rule as tending to vary or contradict the provisions of the assignment of the Certificate of Title as executed by Peek to Moffitt. However, the rule against the admission of parol evidence to vary or contradict a written contract does not apply where the writing in respect to which it is sought to introduce parol evidence is collateral to the issue involved in the action. 32 C.J.S., Evidence, § 1011; 20 Am.Jur., Evidence, section 1142. We adhere to this well-established exception to the parol evidence rule. It is recognized and applied in numerous authoritative decisions of this Court, among which are these: Pollock v. Wilcox, 68 N.C. 46; Carden v. McConnell, 116 N.C. 875, 21 S.E. 923; Ledford v. Emerson, 138 N.C. 502, 51 S.E. 42; Hall v. Geissell & Richardson, 179 N.C. 657, 103 S.E. 392; Chatham v. C. C. Disher Chevrolet Co., 215 N.C. 88, 1 S.E.2d 117; Jones v. Raney Chevrolet Co., 217 N.C. 693, 9 S.E.2d 395.

In Hall v. Geissell, supra, 179 N.C. at bottom of page 659, 103 S.E. at page 393, it is said: '* * * the parol evidence rule, as to the contents of a written instrument, applies only to actions between parties to the writing and when its enforcement is the substantial cause of action. * * *' (Italics added.) The enforcement of the written assignment of the Certificate of Title made by Peek to Moffitt was in no sense an issue, substantial or otherwise, in the instant case. On the contrary, the validity of the transfer of the tractor title from Peek to Moffitt is conceded by all the parties. Indeed, both chattel mortgages in suit--the purchase money mortgage made by Moffitt to Peek and the later mortgage made by Moffitt to Wachovia Bank and Trust Company--derive their efficacy from Moffitt's ownership of the tractor, as evidenced by Peek's transfer of title to Moffitt. Therefore Peek's cause of action and the Bank's defenses, all based on chattel mortgages made by Moffitt, presuppose a valid transfer of title from Peek to Moffitt. This being so, the written assignment of the Certificate of Title and the parol evidence in respect thereto were collateral to all 'substantial' issues involved in the case. And the challenged testimony of Peek, as was that of witness Creed offered contra by the Bank, tending to show the facts and circumstances surrounding the execution of the assignment of title and the acts, statements, and conduct of the parties at the time of the execution of the assignment, was relevant and competent as bearing on the issue of estoppel. The challenges to this testimony are without merit.

Assignments of Error Nos. 10 and 11 relate to the testimony of Peek, admitted over objection of the Bank, to the effect that he had additional income with which to cover the check he had given to Carolina Garage in satisfaction of its first lien chattel mortgage. These...