Smith v. Gordon

• Decision Date: 14 June 1933
• Docket Number: No. 20.,20.
• Citation: 169 S.E. 634,204 N. C. 695
• Court: North Carolina Supreme Court
• Parties: SMITH. v. GORDON.

204 N. C. 695

169 S.E. 634

SMITH.

v.GORDON.

No. 20.

Supreme Court of North Carolina.

June 14, 1933.

Appeal from Superior Court, Pasquotank County; Cowper, Special Judge.

Action by C. L Smith, agent for S. A. Moore, against P. L. Gordon. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

On September 25, 1926, C. L. Smith, agent. for S. A. Moore, in an action in the circuit court for Kanawha county, state of West. Virginia, secured a judgment against the defendant for the sum of $710, with interest thereon. This judgment recites that on September 2, 1926, an affidavit was filed as provided by statute and a distress warrant issued against the defendant, commanding the proper officer of the state of West Virginia "to distrain so much of goods and chattels of defendant as were found upon messuage and tenement described in the affidavit as shall be sufficient to satisfy the rent in arrears and the cost of the distress as claimed in the said affidavit, " etc. Pursuant to such warrant certain personal property of defendant was seized and sold. The sale was made on October 6, 1926, and the property, according to the return of the constable, brought $50.

On May 23, 1930, the plaintiff Smith, as agent for said Moore, instituted an action against the defendant in Pasquotank county. The complaint recited the West Virginia judgment, and said judgment was duly authenticated as provided by law. The defendant did not answer, and a judgment by default was taken. However, this judgment was afterwards vacated on the ground of excusable neglect, and the plaintiff did not appeal. Hence this phase of the case is not. relevant. The defendant filed an answer alleging that the plaintiff had secured a judgment against him in West Virginia without personal service and had seized and sold all of his office furniture and fixtures. The evidence tended to show that S. A. Moore owned an office building in Charleston, W. Va., and that the defendant rented certain offices and vacated the premises and left the state. On July 24, 1926, the defendant wrote the following letter: "Maple City, Mich., July 24, 1926. Mr. S. A. Moore, Charleston, W. Va., Dear Mr. Moore: Your letter of the 21st just received and I am only answering it as I am sending to my friend George Brooks a copy of this letter so he will know-just how I stand in reference to my indebtedness to you. When I left Charleston I owed you $378.00 up to the fifteenth of January, 1926, when I told you that I was leaving and where you said that you would have to hold my equipment for the debt, which was all that was said. Then in March you write me that you have me charged with rent to March first at the full rate on account of my stuff still being in the office, and thereafter you would have it moved to one room and only charge me thirty dollars a month storage, your rooms you must remember only rented for twenty dollars a month. I wrote you then that I would pay you the $378.00 from January the fifteenth interest added as fast as I could, and that I would pay no further attention to any communication until you sent me over your signature a statement of my true indebtedness. So far you have failed to do so, and that is the reason that I have made no effort to pay you anything. I also said in the same letter that you be right sure of your legal right to sell any of that equipment as you threatened to do. P. L. Gordon."

On December 19, 1929, the defendant also wrote the following letter: "Camden, N. C, December 19, 1929. American Creditors Association, Cincinnati, Ohio. Gentlemen: Your form letter in regard to my indebtedness to Mr. S. A. Moore, of Charleston, W. Va., just received and in reply will say that I never owed Mr. Moore any such sum, but when I left Charleston on January, 1926, I did owe him $378.00, and the accompanying copy of a letter that I wrote to Mr. Moore from Michigan in July of that year will...