Twin City Motor Co. v. Rouzer Motor Co.

• Decision Date: 12 June 1929
• Docket Number: 495.
• Citation: 148 S.E. 461,197 N.C. 371
• Parties: TWIN CITY MOTOR CO. v. ROUZER MOTOR CO. et al.
• Court: North Carolina Supreme Court

148 S.E. 461

197 N.C. 371

TWIN CITY MOTOR CO. v. ROUZER MOTOR CO. et al.

No. 495.

Supreme Court of North Carolina

June 12, 1929

Appeal from Superior Court, Rowan County; John M. Oglesby, Judge.

Action by the Twin City Motor Company against the Rouzer Motor Company and another. From a judgment dismissing action plaintiff appeals. Affirmed.

Conditional sale contract should describe property with such certainty as will enable third parties, aided by inquiries which contract itself suggests, to identify it.

Description in conditional sales agreement describing property as "one S.H. coupe No. ______ Model T (hereafter called 'car')" held sufficient.

The material facts agreed to by the parties necessary for the decision of the action:

On May 3, 1926, one Wm. Simpson purchased from the defendant Rouzer Motor Company a secondhand Ford coupé automobile and executed a conditional sale agreement to secure the balance of the purchase price, $325, to be paid in certain installments which was duly recorded in the office of the register of deeds for Rowan county, N. C.

The material language of the conditional sale agreement, for the consideration of this case: "That seller *** has this day sold and delivered, but upon the conditions hereinafter recited to the purchaser (Wm. Simpson) one S. H. Coupé, No --, Model T. (hereinafter called the 'car') for Three Hundred and 75/100 Dollars ($375.00), paid or to be paid by the purchaser to the seller. *** The conditions of this agreement are, that delivery of the car by seller to purchaser does not pass title thereto, but both the car and all additions and improvements thereto and the title thereto shall not pass by such delivery, but are and shall remain vested in and be the property of the seller and assigns (and any extension or assignment of said notes shall not waive this or any other condition herein contained) until said notes, or any renewals thereof, evidencing said installments of purchase price, and all interest thereon, are paid in full. *** Purchaser shall keep the car free from all liens, taxes, charges, and shall at his expense and in his name cause the car to be registered and licensed in compliance with law." The abbreviations "S. H.," appearing in the conditional sale agreement from William Simpson to Rouzer Motor Company, stands for the words "secondhand," and the words "Model T" in said agreement refer to a particular type of Ford automobile.

The said Rouzer Motor Company duly transferred and indorsed said note and conditional sale agreement to the Commercial Finance Corporation, the defendant, of Salisbury, which now holds the same. That the said automobile described in said conditional sale agreement is the only automobile owned by the said William Simpson on May 3, 1926, and until the bringing of this action. That William Simpson moved from Salisbury to Winston-Salem during the month of March, 1927, leaving a balance of $210 due on said note and conditional sale agreement. That William Simpson, then living in and a resident of Winston-Salem, on the 8th day of July, 1927, employed the Twin City Motor Company, the plaintiff, at Winston-Salem, to place and they did place a new engine or motor in the automobile described in the said conditional sale agreement to Rouzer Motor Company, and on the same day the said William Simpson executed to said Twin City Motor Company a note for $108, with interest from July 8, 1927 (the balance due is $89.15), to cover the price of said new motor or engine and the cost of the labor in installing the same in said chassis, and to secure said note the said William Simpson executed to said Twin City Motor Company a conditional sales note and chattel mortgage. Said conditional sale note and chattel mortgage were duly recorded in the office of the register of deeds of Forsyth county, N. C., both describing same--the chattel mortgage "One Ford coupé automobile motor No. 14860614." In the conditional sale note the only change is "engine" instead of "motor."

On November 17, 1927, defendants sold the coupé to one Homer Hall for $130 and took a chattel mortgage to secure said debt, which was duly recorded. That at the time of said sale $130 was the fair and reasonable market value of said automobile, and $95 the fair and reasonable market value of said new engine or motor alone. That when plaintiff removed the old engine from said chassis said old engine was worn out and worthless. That said new engine or motor is separable from said chassis or body of said automobile and may be removed from said chassis or body without injury to the same, which removal could be effected by unfastening certain bolts, nuts, and screws and lifting said engine out.

The court below rendered the following judgment:

"This cause coming on to be heard at October Term 1928, of Rowan Superior Court, before His Honor, John M. Oglesby, Judge of the Superior Court, and being heard upon an agreed statement of facts signed by the parties, and the Court being of the opinion that the plaintiff is not entitled to recover on the facts as set forth in the 'agreed statement of facts.' It is now, on motion of P. S. Carlton, counsel for defendants, ordered and adjudged:

"1. That plaintiff take nothing by its action from the defendants, and that the defendants go hence without day.

"2. That the costs of this action, including the costs incurred by the defendants, be taxed against the plaintiff.

"3. That this action be, and the same is, hereby dismissed."

The plaintiff excepted and assigned error to the court below signing the judgment and appealed to the Supreme Court.

Lee Overman Gregory, of Salisbury, and F. L. Webster, of Winston-Salem, for appellant.

John Kesler and P. S. Carlton, both of Salisbury, for appellees.

CLARKSON J.

1. Is the description in the conditional sales agreement sufficient for the purpose of identifying the property in question? We think so. The facts agreed to in regard to the description are as follows: "One S. H. coupé No. -- Model T. (hereafter called the 'car').' D' The abbreviation of the words "secondhand" is S. H. and the words "Model T." in said agreement refers to a particular type of Ford automobile. The same was purchased from Rouzer Motor Company on May 3, 1926, by William Simpson, being one S. H. coupé No. -- Model T, and the only automobile owned by William Simpson.

Both plaintiff and defendants cite Stephenson v. R. Co., 86 N.C. 455, and we will do the same. The general principle is laid down by Ruffin, J., at pages 456, 457, as follows "We concur in the view taken by His Honor. While it cannot be expected that a mortgage should set forth a description of the property conveyed with such...