Turnage Co. v. Morton
| Decision Date | 07 April 1954 |
| Docket Number | No. 307,307 |
| Court | North Carolina Supreme Court |
| Parties | TURNAGE CO., Inc. v. MORTON. |
Lewis & Rouse, Farmville, for plaintiffappellee.
James C. Lanier, Jr., Greenville, W. T. Joyner, Raleigh, for defendant-appellant.
Under the stipulations and findings of fact stated above, nothing else appearing, the plaintiff was entitled to judgment. White v. Boyd, 124 N.C. 177, 32 S.E. 495.
In White v. Boyd, supra, Crowder, a cropper on the land of plaintiff White, took the tobacco to the sales warehouse of the defendants where it was sold by them at public auction. The sale to the highest bidder was completed and the sale price paid to Crowder, less a commission to the defendants as compensation for their services. Crowder had given to the plaintiff Green a mortgage on the crop. In addition, the plaintiff White, owner of the farm and landlord of Crowder, had mortgaged the crop to the plaintiff Green. Plaintiffs' action to recover the amount the defendants received for the tobacco upon their sale thereof at the instance of Crowder was nonsuited, apparently upon the theory that the defendants were mere intermediaries and did not occupy the status of agent for Crowder. This Court reversed, the explicit holding being that the defendants sold the tobacco as agents for Crowder; that there was a wrongful conversion by the defendants; and that the plaintiffs could waive the tort and sue both Crowder and the defendants on the basis of money wrongfully had and received.
The facts alleged in the original answer are insufficient in law to constitute a defense to plaintiff's action. It was so held in Four County Agricultural Credit Corp. v. Satterfield, 218 N.C. 298, 10 S.E.2d 914, 915, where Seawell, J., says:
The further defense alleged in the amendment to answer quoted above affords the basis for the position taken by the defendant upon this appeal. It is unnecessary to pass upon whether the facts as alleged are sufficient to constitute a waiver or estoppel, for, in our view, the findings of fact relative to this subject are insufficient to show that the plaintiff waived its liens or is estopped to assert them.
We look to the findings of fact. It has been held repeatedly that an exceptive assignment of error challenging the correctness of the judgment, where jury trial is waived under G.S. § 1-184, presents one question, that is, whether facts found are sufficient to support the judgment. Swink v. Horn, 226 N.C. 713, 40 S.E.2d 353, and cases cited.
The only finding of fact relative to the affirmative defense of waiver or estoppel is No. 12, viz:
'12. That the tobacco crop remained in possession of the landlord, Mrs. Pruitt. The plaintiff expected...
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