Rogers v. Booker
| Decision Date | 11 October 1922 |
| Docket Number | 259. |
| Parties | ROGERS v. BOOKER. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wake County; Devin, Judge.
Action by W. H. Rogers against W. Frank Booker. Judgment for plaintiff, and defendant appeals. Modified and affirmed.
This was an action for the possession of an automobile, with the ancillary remedy of claim and delivery. The plaintiff claimed the right to possession by virtue of a chattel mortgage executed to him by Carr E. Booker, duly recorded in the office of the register of deeds of Wake to secure a note in the sum of $600 and interest, for money loaned, dated November 1, 1920. The defendant gave bond, retaining possession of the automobile, alleging that he bought it on or about April 12, 1921, from Carr E. Booker, an automobile dealer and agent for the Crow-Elkhart cars in Raleigh. He asserted that he bought the car from said Booker at a sale room in the city of Raleigh, and that he had no notice of any mortgage or claim held by said defendant.
The plaintiff testified that he made a loan to Carr E. Booker, to secure which his mortgage and note were given. He made demand on the defendant, W. F. Booker, when he found he had possession of the car, who said he bought the automobile from Carr E. Booker for $1,000 and declined to give up the car. Carr E. Booker has left the state. He left the night that the plaintiff made the demand on him for the car. On cross-examination, plaintiff said he extended this note to September 1st upon a payment thereon of $75. The plaintiff further testified that he does not think that Carr E. Booker ever sold an automobile in Raleigh, unless it was a second-hand one; that he had an automobile stock in Raleigh and this was the only one in that class. He said the other cars were stored cars. The plaintiff said he had no intimation that there would be any attempt to sell this car. He never agreed that it should be sold, and was never asked permission to sell it. He held the mortgage as security for the loan; that defendant's place was not full of cars.
The defendant testified that he was only distantly related to Carr E. Booker; that he was not interested in his business and did not owe him any money; that he did not know there was any mortgage or lien on the car when he bought it; that he bought it out of the stock Carr E. Booker had in hand; that when he bought the car from Carr E. Booker, he did not ask him if there was any mortgage on it, and did not examine the record; that Carr E. Booker told him the car had been run some; that, when he asked the defendant if he gave permission for the car to be sold, he said, "Of course my mortgage had to be paid." The defendant further said that he was in the mercantile business; that he took mortgages and had them recorded; that he sold mules and horses, and held mortgages against them.
L. J Sears testified, for the defendant, that he had been to Carr E. Booker's place of business; had seen cars in there, but on the day he went there were only two; one was new and the other old. The plaintiff testified that he did not tell the defendant, in either of the conversations he had with him, that he had ever consented for the car to be sold; that Carr E. Booker had never asked him for permission to sell it; that he did not tell the defendant that Carr E. Booker had the car there to sell; that Carr E. Booker never made such statement to him.
Upon the issues submitted the jury found that there was due the plaintiff, on the note and mortgage described in the complaint, $500; that the plaintiff was entitled to the possession of the automobile by virtue of said mortgage; that its value at the time it was taken under claim and delivery was $800. Judgment for plaintiff. Appeal by defendant.
Percy J. Olive, of Apex, and Little & Barnes, of Raleigh, for appellant.
Upon this conflicting evidence, the court charged the jury as follows:
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