United States Fid. & Guar. Co v. A. F. Messick Grocery Co

• Decision Date: 29 April 1908
• Citation: 147 N.C. 510,61 S.E. 375
• Court: North Carolina Supreme Court
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. A. F. MESSICK GROCERY CO.

147 N.C. 510

61 S.E. 375

UNITED STATES FIDELITY & GUARANTY CO.

v.A. F. MESSICK GROCERY CO.

Supreme Court of North Carolina.

April 29, 1908.

1. Justices of the Peace—Equitable Jurisdiction and Relief.

A justice of the peace has jurisdiction of an action, within the jurisdictional amount, by a surety company, to recover of defendant on the ground that the company was surety on the bond of an agent through whom defendant purchased lard, and that the agent had no authority to receive payment for his principal, and that defendant with knowledge thereof paid him, which payment the agent converted to his own use, and that the surety company was compelled to pay the amount thereof to the principal, who assigned its claim to the surety company, thereby constituting it the legal and equitable owner thereof, and the same was improperly brought in the superior court.

2. Same.

Though a justice of the peace has no jurisdiction to declare an equity or to enforce an equitable lien, he has jurisdiction to enforce the collection of money which equitably belongs to a party.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, § 184.]

Appeal from Superior Court, Forsyth County; Justice, Judge.

Action by the United States Fidelity & Guaranty Company against the A. F. Messick Grocery Company. Judgment for defendant, and plaintiff appeals. Affirmed.

This action was brought in the superior court to recover the sum of $147 alleged to be due by the defendant to the plaintiff by reason of a payment made by the latter to the Southern Cotton Oil Company under a bond of indemnity to secure the faithful performance of the duties of J. W. Morisey as agent of the oil company. For the purpose of disposing of this appeal, we need only set forth substantially the allegations of the plaintiff, as made in his complaint, and the facts which the evidence tended to prove, as stated in the brief of its counsel.

The material facts alleged in the complaint are these: The plaintiff is a corporation duly authorized to become surety on fiduciary, judicial, and other bonds, and it was during the year 1903 and 1904, and isnow, engaged in the business of making such bonds by becoming surety on the same. During the years 1903 and 1904 J. W. Morisey was living in Winston, N. C., and acting as the agent for the Southern Cotton Oil Company in the sale of lard and other products of the said oil company, and Morisey executed a bond for the faithful accounting for all property and the payment of all moneys received by him as the agent of the oil company, and the plaintiff became surety on said bond to the oil company. The defendant, A. P. Messick Grocery Company, had been dealing for some time prior to 1903 and 1904 and during said years with Morisey, as agent of the oil company, and had been buying the lard of the oil company from Morisey as its agent, and the course of dealing between Morisey and the defendant had been that the lard was sold by Morisey for the account of the oil company, and remittances were made direct by A. F. Messick Grocery Company to the oil company at its office in Savannah, Ga., and Morisey had no authority to receive payment for the sale of the products of the oil company, nor did the defendant have any right to pay him for such sales, as the defendant well knew. During the spring of 1904 the defendant, A. F. Messick Grocery Company, bought from J. W. Morisey, agent of the oil company, 35 tubs of lard, containing 60 pounds each, of the value of $147, and paid therefor direct to Morisey the said $147, instead of remitting to the oil company, as had been the custom between the parties, and as it knew was required by the oil company. This method of payment was resorted to by Morisey that he might appropriate the said $147 belonging to the cotton oil company to his own use, which he did, and never accounted for the same to his principal, but converted it to his own use, and during the summer of 1904 was a defaulter in a large amount, and committed suicide. The defendant well knew that it had no right or authority to pay Morisey the cash instead of remitting to the oil company, and it had notice of Morisey's fraudulent purposes in thus using the property of his principal for his own purposes, and well knew that Morisey was a man of no property, and was insolvent. At the time of his death, Morisey was indebted to the oil company for money and property of said company misappropriated by him in the sum of $770.53, in which was included the $147, the value of the lard, sold to the defendant, as heretofore set out. On February 13, 1905, the plaintiff, as surety on the bond of Morisey to the oil company, had to pay,...