Vasser v. Buxton

• Decision Date: 28 February 1882
• Citation: 86 N.C. 335
• Court: North Carolina Supreme Court
• Parties: JAMES VASSER v. J. A. BUXTON & CO.

86 N.C. 335

JAMES VASSER

v.J. A. BUXTON & CO.

Supreme Court of North Carolina.

February Term, 1882.

CIVIL ACTION, tried at January Special Term, 1882, of NORTHAMPTON Superior Court, before Graves, J.

The plaintiff sues to recover the possession of a bay mare, and the sole controversy was as to his title. On the trial the evidence was as follows:

The plaintiff, examined on his own behalf, testified that one Samuel Story, residing on a farm of his in Virginia, applied to the plaintiff to buy him a horse. The plaintiff consented to do so if the defendant would go to Petersburg after it, stating that he had money there in the hands of one Jarrett which he could thus use. Accordingly the plaintiff wrote to Jarrett to purchase for himself two horses, which was done, and Story went to Petersburg and brought them out. The bay mare, the property in dispute, worth $130, remained a few days in possession of Story after his return home, when, in company with his brother, he carried her over to the plaintiff's house. There, a settlement was had, and Story gave to the plaintiff his note for $70, the price of the mare, reduced to that sum by deducting a debt due from the plaintiff, and it was agreed she should be the plaintiff's property until the residue of the purchase money was paid and be subject to a lien therefor. Story kept the mare for a year, when the plaintiff, losing one of his gin-horses, sent an inferior horse to Story in exchange for the mare, saying to Story that if the mare worked well in the gin he would credit the note with $30, the difference in their values. The trade was not final. The mare did not work well and the plaintiff retained her until, hearing that a constable had orders to seize her, he returned the mare to Story and took back the horse that had been sent. No credit was endorsed on the note.

George Story, the brother who was present at the transaction, testified that he wrote the note for $70; that it was the understanding of the parties that the mare was to be responsible until she was paid for, and that underneath the signature to the note was a written memorandum to this effect, entered at the same time. Upon this evidence the defendants contended:

1. That no agreement was shown that the property should be in the plaintiff before the delivery to Story.

2. Nor Story's assent to the memorandum put upon his note, and

3. If the contract was made for the retention of title, it was superseded and annulled by the subsequent act of exchange, and the absolute property thereby vested in Story.

In support of these propositions the defendants asked the court to give the following instructions:

1. If the jury are satisfied that the plaintiff agreed to buy the mare for Story, or to sell her to him, and she was delivered to Story, or he permitted to take possession, and that afterwards the parties agreed to let the mare stand responsible for the purchase money, the plaintiff could not recover.

2. If Story was allowed to take possession before the written memorandum of agreement was executed, the title passed from the plaintiff and he could not maintain the action.

The court charged the jury “that in order to find how the matter is, it is necessary for them to ascertain what was the contract entered into between the parties; that a person may contract to sell and reserve in himself the title to the thing sold, until full payment of the purchase money; but that he cannot sell and deliver the thing, whereby the...