Rosenmann v. Belk-Williams Co., Inc.

• Decision Date: 31 March 1926
• Docket Number: 286.
• Citation: 132 S.E. 282,191 N.C. 493
• Parties: ROSENMANN v. BELK-WILLIAMS CO., Inc. SAME v. ROSENMANN et al.
• Court: North Carolina Supreme Court

132 S.E. 282

191 N.C. 493

ROSENMANN v. BELK-WILLIAMS CO., Inc.

SAME v. ROSENMANN et al.

No. 286.

Supreme Court of North Carolina

March 31, 1926

Appeal from Superior Court, New Hanover County; Daniels, Judge.

Action by Hannah Rosenmann against the Belk-Williams Company, Inc. and another, wherein Adolph Rosenmann and William Rosenmann were made parties defendant as guardians of M. Rosenmann and individually, and permitted to file an answer. To the answer filed, plaintiff filed cross-complaint, and, on trial, action was consolidated with action by said plaintiff against William Rosenmann and Adolph Rosenmann, guardians of Marcus Rosenmann, and I. B. Grainger, trustee. Judgment for defendants, and plaintiff appeals. No error.

While witness may usually speak from recollection, he may refer to paper, entry, or other written instrument to refresh memory.

In the first of these cases the plaintiff brought suit on a note for $24,798.65, executed and delivered to her on September 11 1923, by Belk-Williams Company, Inc., payable 90 days after date, and indorsed by W. H. Belk. Prior to the maturity of the note the Belk-Williams Company received a notice from Adolph Rosenmann, forbidding payment to the plaintiff on the ground that the note was a part of the partnership assets of M. Rosenmann & Son, of which Adolph Rosenmann was a partner and on the further ground that the plaintiff claimed the note as a gift from M. Rosenmann, who was mentally incapacitated. The Belk-Williams Company was notified that, if it made payment to the plaintiff, Adolph Rosenmann would hold the company responsible for any loss or damage he might thereby sustain; and thereupon the company paid to the clerk of the superior court the full amount due on the note and was discharged, together with W. H. Belk, further responsibility. Adolph Rosenmann and William Rosenmann, individually, and as guardians of M. Rosenmann, were then made parties and permitted to file an answer. In their answer they allege that the partnership of M. Rosenmann & Sons sold to the Belk-Williams Company its stock of goods at the price of $54,798.68, a part of which was represented by the note sued on; that M. Rosenmann attempted to give the plaintiff the note she claims, but did not deliver it to her prior to the time of his commitment to a sanitarium, but retained possession of it and collected and used the interest until the plaintiff came into possession of the several notes and began to collect the interest thereon; that M. Rosenmann had no authority to make the gift; and that the pretended gift was without consideration and of no effect. They pray that the notes and the proceeds therefrom be declared the property of the partnership and the alleged gift void.

To this answer the plaintiff filed a reply and cross-complaint alleging that the notes executed by the Belk-Williams Company were first made payable to M. Rosenmann, and all these, including the note sued on, had been renewed many times in her name and given her as a part of M. Rosenmann's estate, and that she was the actual owner thereof. She alleged also that the notes executed by the Bladenboro Cotton Mills had been renewed by her from time to time.

In the second case the plaintiff filed a petition before the clerk of the superior court in which she alleged that M. Rosenmann, her husband had been adjudged insane and had been committed to a hospital in Mamaroneck, N. Y.; that up to July 31, 1924, she had received $300 a month for her support and maintenance; that she had to stay near her husband at great expense; that her income was insufficient; and that for several months she had not received her monthly allowance. She filed her petition under C. S. § 2294, for the purpose of having a part of her husband's estate sold for her maintenance.

Adolph Rosenmann, guardian, and William Rosenmann, filed separate answers to the petition; Adolph denying the material allegations, and pleading substantially the same defense set up in the first action, and specifically alleging that a part of the money paid by the Belk-Williams Company had been loaned to the Bladenboro Cotton Mills, and that the plaintiff had no interest in the notes given for the loan. The answer of William Rosenmann admits practically all the allegations of the plaintiff.

The clerk made no order, but transferred the case to the superior court docket; and, it appearing that the matters in controversy in the first case were in controversy in the second, and that the issues were the same in each, the court made an order consolidating the two causes.

The following verdict was returned:

(1) Is the plaintiff the owner of the proceeds of the Belk-Williams notes now in the hands of the Murchison National Bank? Answer: No.

(2) Is the plaintiff the owner of the proceeds of the Bladenboro Cotton Mills notes now in the hands of the Murchison National Bank? Answer: No.

Judgment on the verdict, and appeal by the plaintiff. No error.

Marsden Bellamy and John D. Bellamy & Sons, all of Wilmington, for appellant.

Rountree & Carr and E. K. Bryan, both of Wilmington, for Adolph Rosenmann, guardian.

ADAMS J.

The only question litigated on the trial and involved in the appeal is the title or ownership of five promissory notes aggregating $54,798.65. Two of these notes each in the sum of $10,000, payable to the order of the plaintiff, were executed by the Bladenboro Cotton Mills, Inc., on November 23, 1922, and February 21, 1923, respectively. Of the remaining notes, one in the sum of $24,798.65 and two, each in the sum of $5,000, payable to the plaintiff, were executed by the Belk-Williams Company, Inc., respectively on September 11, 1923, and on December 10 and 12, 1923. The plaintiff alleges that she is the owner and entitled to the possession of these notes, or to such amount paid thereon as may be subject to the order of the court.

Adolph Rosenmann, one of the defendants, answered the complaint and the petition, alleging that in 1918 the partnership of M. Rosenmann & Son (composed of M. Rosenmann, Adolph Rosenmann, and William Rosenmann) sold to the Belk-Williams Company their stock of goods and received in part payment of the purchase price notes of the Belk-Williams Company amounting to $54,798.65; that the sum of $20,000 was paid and afterwards loaned to the Bladenboro Cotton Mills; that the notes were first made to the partnership, or to M. Rosenmann, for the benefit of the partnership; that M. Rosenmann, without authority of the other partners, afterwards caused the notes in controversy to be made payable to the plaintiff; that he is now insane; and that Adolph Rosenmann and William Rosenmann are his guardians. Given this outline, the contentions of the parties and special phases of the evidence will be considered in connection with the exceptions.

We see no error in the order consolidating the two cases. In Hartman v. Spiers, 87 N.C. 28, it was held to be improper to consolidate causes which are essentially different, or causes in which the parties are not the same but in the present case the pleadings show, and the order states, that the questions raised in the first suit are substantially the same as those presented in the second. That this conclusion is correct and that the consolidation was not improper may be seen by reference to the issues that were submitted to the jury. Henderson v. Forrest, 114 S.E. 391, 184 N.C. 230; Wilder v. Greene, 89 S.E. 1062...