W. B. Mershon & Co v. Morris

• Decision Date: 25 May 1908
• Citation: 148 N.C. 48,61 S.E. 647
• Court: North Carolina Supreme Court
• Parties: W. B. MERSHON & CO. v. MORRIS.

148 N.C. 48

61 S.E. 647

W. B. MERSHON & CO.

v.MORRIS.

Supreme Court of North Carolina.

May 25, 1908.

1. Appeal and Error—Exceptions—Assignment of Error—Necessity.

When a case is submitted on an agreed state of facts or on demurrer, no exception or assignment of error is necessary.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 1432-1434.]

2. Corporations — Contracts — Corporate Seal—Necessity.

Where the president of a corporation executed in its name an order for machinery on condition that the title should remain in the vendor until payment of price, and the corporation and its receiver, subsequently appointed, accepted and retained the property, such contract was enforceable, though no corporate seal was affixed thereto.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 1801-1805.]

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

Submission of controversy between W. B. Mershon & Co. and R. E. Morris, receiver of the Fry-Walker Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Parties plaintiff and defendant, having a question in difference which might properly become the subject of a civil action, and desiring to avoid the expense and delay of an action, have agreed upon the following case, which contains all the material facts upon which the controversy depends, and herewith submit the same, with the request that the court render such judgment as may be proper in the premises: It is agreed:

"(1) That the Fry-Walker Lumber Company is a corporation duly chartered by the state of North Carolina prior to the dates mentioned herein, and that Robert E. Morris was duly appointed receiver of the Fry-Walker Lumber Company by an order of the superior court of Rutherford county in that certain action entitled 'E. A. Walker et al. v. Fry-Walker Lumber Company, ' and as such is authorized, empowered, and directed to wind up and settle the business of said corporation, and to bring and defend actions when same are necessary in the furtherance of such settlement.

"(2) That on the 17th day of September, 1906, the said Fry-Walker Lumber Company purchased from the plaintiffs certain machinery at the price of $550, of which $200 was paid in cash on the delivery of the machinery purchased, and the balance in two notes of $175 each, at 5 per cent. from date, to be due November 15, 1906, and January 15, 1907, and that there is still a balance of $176.50, with interest from January 15, 1907, unpaid on said notes. That said machinery at the time of the appointment of the receiver was in the possession of said Fry-Walker Company and being used by it, and was necessary to the proper operation of its plant. That at the time of the $

delivery of said machinery a paper writing was made, which is hereto attached and made a part and parcel of this agreement and marked 'Exhibit A':

" 'W. B. Mershon & Company, Main Office and Works, Saginaw, Michigan: Subject to strikes, accidents, or other delays beyond your control, please ship in good order the following machinery, f. o. b. Saginaw, Michigan, about —— at once ——: One rebuilt Ideal band saw complete, with blue prints and directions for setting up and operating, but without saw blades or filing room equipment, for which we agree to pay as below after date of shipment $550 with exchange. The purchaser agrees to make settlement within 30 days from date of shipment, and to then evidence all payments due at a later date by notes bearing date of shipment and interest as follows: $200 cash on delivery of machine; $175 by note bearing date of invoice, with interest at 5 per cent. maturing November 15, 1906; $175 by note, bearing date of invoice, with interest at 5 per cent., maturing January 15, 1907. It is agreed that title to the property mentioned above shall remain in the consignor until fully paid for in cash, and that this contract is not modified or added to by any agreement not expressly stated herein, and that a retention of all the property forwarded after 30 days from date of shipment shall constitute a trial and acceptance, be a conclusive admission of the truth of all representations made or for the consignor, and void all its contracts or warranty express or implied. It is further agreed that the purchaser shall keep the property fully insured for the benefit of W. B. Mershon & Co.

" 'Ship via ——.

" '[Signed] Fry-Walker Lumber Co.,

" 'By H. W. Fry, President & Treasurer.

" 'In the presence of John W. Callahan.'

"Proven by the...