State Trust Co. v. M & J Finance Corp.
| Citation | 78 S.E.2d 327,238 N.C. 478 |
| Decision Date | 04 November 1953 |
| Docket Number | No. 162,162 |
| Court | United States State Supreme Court of North Carolina |
| Parties | STATE TRUST CO. v. M & J FINANCE CORP. et al. |
E. L. Loftin, Asheville, for defendant appellant.
M. F. Toms, Hendersonville, for plaintiff-appellee.
Basically the appellant, M & J Finance Company, challenges the judgment from which appeal is taken, on the ground that the court erred in answering the first and fifth issues as indicated. It invokes, and undertakes to bring its case within the well settled principle of law stated and applied in Atlantic Discount Corp. v. Young, 224 N.C. 89, 29 S.E.2d 29, that a mortgagor left in possession of goods, which in contemplation of the parties, are to be disposed of by him in the ordinary course of trade, is the agent of the mortgagee to the extent that he may pass title to the goods, sold in the usual way to a purchaser, freed of the mortgage lien, Southern R. Co. v. W. A. Simpkins Co., 178 N.C. 273, 100 S.E. 418, 10 A.L.R. 731 and recently restated in Handley Motor Co. v. Wood, 237 N.C. 318, 75 S.E.2d 312, 316, in opinion by Parker, J., in this manner: 'When the owner of personal property in any form clothes another with the apparent title or power of disposition, and third parties are thereby induced to deal with him, they shall be protected', citing authorities, including Atlantic Discount Corp. v. Young, supra.
However, applying this principle this Court is of opinion, and holds that the evidence shown in the case on appeal in too susceptible of different interpretations and inferences to require a ruling, as a matter of law, that plaintiff, by its conduct, is estopped to deny the priority of the chattel mortgage asserted by defendant M & J Finance Company,--the issue to which the fifth is directed.
The evidence, taken in the light most favorable to plaintiff, seems to make a case for a jury. While it is true that there is evidence tending to show that plaintiff had left the mortgaged automobiles in possession of Case, the mortgagor, to be disposed of in the ordinary course of trade, there is also evidence tending to show that, in the dealings between plaintiff and Case, the later had no permission or authority to sell any automobile on which the plaintiff had a mortgage until it was paid off, nor did he have authority to collect any money for plaintiff. This raises question for fact finding.
And when the parties to a civil action waive trial by jury, as they may do, and agree that the...
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