Sharp v. Danville, M. & S.W.R. Co.

• Decision Date: 16 May 1890
• Parties: SHARP v. DANVILLE, M. & S.W. R. CO.
• Court: North Carolina Supreme Court

11 S.E. 530

106 N.C. 308

SHARP v. DANVILLE, M. & S.W. R. CO.

Supreme Court of North Carolina

May 16, 1890

Appeal from superior court, Rockingham county; J. C. MACRAE, Judge.

It appears that a cause in equity was pending in the circuit court of the United States in and for the western district of North Carolina, wherein the Richmond & West Point Terminal Railway & Warehouse Company were the complainants, and the Danville, Mocksville & South-western Railroad Company and others were defendants. In that cause, on the 7th day of November, 1885, J. Turner Morehead was appointed receiver of the last-named corporation defendant, charged with authority and power to take into his possession and control all its property and effects, etc. On the same day, after the said appointment of the said receiver, the said defendant railroad company confessed two judgments in favor of the present plaintiff in the superior court of the county of Rockingham purporting and intending to confess the same as allowed and provided by the statute. Code, §§ 570, 572. The following is a transcript of the record of the first of those judgments as it appears of record: "Thomas R. Sharp v. Danville Mocksville, & c., R. R. Co. Filed April 16, 1887. Resolved by the board of directors of the Danville, Mocksville and South-western Railroad Company, that Secretary E. C Winstanley be, and he is hereby, directed, for and in behalf of the said Danville, Mocksville & Southwestern Railroad Company, to confess judgment in the superior court of Rockingham county, in favor of Thos. R. Sharp, against said company, in the sum of eight thousand one hundred and fifty-four dollars and forty-one cents, ($8,154.41,) found justly due unto him in his individual account above reported and approved. Also, to confess judgment against said company in favor of Thos. R. Sharp, in the sum of sixteen thousand eight hundred and sixty-seven dollars and sixty cents, ($16,867.60,) on account of his contingent liabilities, with interest on $8,017.60 thereof from the 14th day of November, 1881, and on $4,600.00 thereof from the 26th of November, 1885. A true copy of original. Witness my hand and corporate seal of D., M. & S.W. R. R. C., Nov. 7th, 1885. H. M. SHIVLER, Vice-President."

"Danville Mocksville & Southwestern Railroad Company in account with Thomas R. Sharp. By reason of contingent liabil-ities for and in behalf of said company:

To individual indorsement of a draft in favor of Burn-ham, Parry, Williams & Co., for the sum of ........ $8,017 60

--Accepted by Thos. R. Sharp as president of said company, on the 12th day of Oct., 1881, and payale on the 14th day of Nov., 1881, and bearing interest from the 14th day of Nov., 1881. To individual indorsement of a draft of E. C. Win-stanley, secretary of D., M. & S.W. R. R. Co., in favor of Johnston & Cheek, for money loaned, dated Oct. 24th, 1885, and due and payable on the 26th day of November, 1885........... 4,000 00

To his individual liability assurety in 17 conditional penal bonds, each in the sum of two hundred and fifty dollars, filed and signed by him as president of said company, and also signed by him as surety in 17 several suits now pend-ing in superior court of Rockingham county upon 17 several petitions for re-cordari and supersedeas in matters of J. Turner Morehead & Co. v. Dan-ville, Mocksville & South-western Railroad Com-pany, as of record in said court may be fully seen, aggregating.............. $16,867 60 $4,250 00

"Duplicate original.

"THOS. R. SHARP.

"Subscribed and sworn to before me this Nov. 7, 1885. JONES W. BURTON, J. P."

"State of North Carolina, Rockingham county. Superior court. Thos. R. Sharp, Plaintiff, v. The Danville, Mocksville & Southwestern Railroad Co., Def't. The Danville, Mocksville and Southwestern Railroad Company, by E. C. Winstanley, secretary of said company, being thereunto duly authorized by said company, hereby confesses judgment in favor of Thomas R. Sharp, the plaintiff above named, for sixteen thousand eight hundred and sixty-seven dollars and sixty cents, with interest on $8,017.60 thereof from 14th day of November, 1881, and on $4,600.00 thereof from 26th day of November, 1885, until paid. This confession of judgment is to secure the plaintiff against divers liabilities on behalf of the Danville, Mocksville & Southwestern Railroad Company, amounting in the aggregate, exclusive of interest, to the principal sum above stated, the several liabilities arising upon the following facts, to-wit: First. The said Thomas R. Sharp, as president of said company, accepteth the draft of Burnham, Parry, Williams and Company, in the sum of $8,016.35, and indorsed the same individually, of which the following is a copy, to-wit: '$8,016.35. Philadelphia, Oct. 12th, 1881. Thirty days after date, pay to the order of Thos. R. Sharp, eight thousand and sixteen dollars and 35 cents, value received, and charge to account of BURNHAM, PARRY, WILLIAMS & CO. To Thos. R. Sharp, Esq., President Danville, Mocksville & Southwestern Railway, No. 115 Boadway, New York. [Indorsed] THOS. B. SHARP.' The consideration of said draft was the purchase money for a railroad engine or locomotive, Lilly C. Morehead, bought for use upon road-way of said company, and the same went to protest at the cost of $1.25; and on this draft the drawers have brought suit in the state of Virginia against the Danville, Mocksville & Southwestern Railroad Company, and the said Thomas R. Sharp individually, and have also brought suit in the state of North Carolina, which is now pending, coupled with an attachment of said Sharp's real estate in North Carolina, against the said Thomas R. Sharp individually, as indorser of said draft. Second. On or about the 24th day of October, 1885, the said Thomas R. Sharp became individually liable by indorsement of a draft drawn by E. C. Winstanley, secretary of the said Railroad company, drawn upon Thomas R. Sharp, president of said company, and by said Thomas R. Sharp individually indorsed, and thereafter passed to Johnston & Cheek, bankers, for full value, who are now the holders thereof. The consideration of said draft was money loaned by Johnston & Cheek upon said draft so indorsed for the use and benefit of said railroad company, and the same will become due and payable on November 26th, 1885; and the said Thos. R. Sharp will thereafter be under contingent liability to pay the same. Third. In the month of September, 1885, in seventeen suits now pending in the superior court of Rockingham county upon petitions for recordari and supersedeas in the matter of J. Turner Morehead & Co. v. The Danville, Mocksville & Southwestern Railroad Company, the said Thos. R. Sharp became liable as surety to said company in seventeen penal bonds, each in the sum of two hundred and fifty dollars, required by the court to be filed by said company, the aggregate of which seventeen penal bonds is the sum of forty-two hundred and fifty dollars, as may be seen by reference to the records of the superior court of Rockingham county, in which said suits are pending, and the object of which petitions forrecordari is to prevent the forced sale and sacrifice of the property of said company. A statement of said Thomas R. Sharp's account against said company by reason of said contingent liability, duly sworn to, is hereto attached, marked 'C,' and is hereby made a part of this statement, which said Exhibit C was on this 7th day of November, 1885, submitted to the board of directors of said company, and by them approved, as showing the amount of the said Thomas R. Sharp's contingent liability for and in behalf of said company; and the said sum for which entry of judgment is hereby authorized is correct, and does not exceed the amount of said contingent liabilities. Witness the signature of E. C. Winstanley, secretary of said company, and the corporate seal thereof hereto affixed under the specific authority of the board of directors of said company, duly granted by resolution, a certified copy whereof is herewith filed, marked 'B.' This Nov. 7, 1885. DANVILLE, MOCKSVILLE & S.W. R. R. CO. By E. C. WINSTANLEY, Secretary."

"State of North Carolina, Rockingham county. Before me, John T. Pannill, clerk of the superior court of Rockingham county, personally appeared E. C. Winstanley, secretary of the Danville, Mocksville & Southwestern Railroad Company, who, being duly sworn, maketh oath that he is the secretary of said company, and that the statement above signed by him is true. This November 7th, 1885. JOHN T. PANNILL, C. S. C."

"State of North Carolina, Rockingham county. Superior court. Thomas R. Sharp, Plaintiff, v. The Danville, M. & S.W. R. R. Co., Def't. Judgment. On filing the foregoing statement and confession, duly verified, together with the exhibits therein referred to, it is ordered and adjudged by the court that the plaintiff, Thos. R. Sharp, do recover against the defendant, the Danville, Mocksville & Southwestern Railroad Company, the sum of sixteen thousand eight hundred and sixty-seven dollars and sixty cents, with interest on $8,017.60 thereof from the 14th day of November, 1881, and on $4,600.00 thereof from the 26th day of November, 1885, until paid according to the terms of said confession, as a security for the plaintiff's contingent liability in said amount, together with $3.00 cost hereof. This November 7th, 1885. JOHN T. PANNILL, C. S. C."

"Resolved by the board of directors of the Danville, Mocksville & Southwestern Railroad Company, that E. C. Winstanley, secretary, be, and he is hereby, directed, for and in behalf of the said...