Waller v. Bowling

• Decision Date: 10 March 1891
• Citation: 12 S.E. 990
• Parties: WALLER v. BOWLING.
• Court: North Carolina Supreme Court

12 S.E. 990

WALLER v. BOWLING.

Supreme Court of North Carolina

March 10, 1891

This was a civil action tried at the April term, 1890, of the superior court of Granville county, before WOMACK, Judge. The action was brought to recover damages for unlawfully removing and converting to the defendant's own use certain machinery that had been placed in a mill run by water. On the 23d of August, 1880, and for some years prior to that time the plaintiff and defendant were owners in fee and tenants in common of the tract of land on which the mill was situate each holding one undivided half. On said 23d of August the defendant executed a contract under seal to convey to one John T. McDonough, on the payment of a note of the same date for the sum of $300 by said McDonough and wife. McDonough and his wife, on the same day, also joined in executing a mortgage deed upon his interest in said land to secure the payment of said notes. The said John T. McDonough borrowed of the plaintiff the sum of $200, and executed his note, bearing date March 20, 1883, for said sum, with interest at 8 per cent. The said McDonough purchased with said borrowed money the turbine wheel, shafts, pulleys, level, cog-wheel, etc which are the subject of this action, and executed, his wife joining, a mortgage, conveying said machinery, to secure said note due plaintiff, the said machinery not then being in said mill. On default in the payment of the $300 note for purchase money of the land, the defendant, on the 17th of January brought suit against McDonough to subject his interest in the land, and at April term, 1888, of the superior court of Granville obtained a decree of foreclosure, under the terms of which the interest of said McDonough in said land was sold by a commissioner for the sum of $50, the defendant being the purchaser, and said sale was confirmed at the September term 1888, of said court. The wheel and some other parts of the machinery were placed in the mill after being conveyed, on the 20th of March, 1885, by mortgage deed, to secure said note for $200, due to plaintiff, but before the said foreclosure sale. The plaintiff alleges that none of the machinery sued for had been placed in position in the mill until after the mortgage to him was executed. The issues submitted were as follows: "(1) Did the defendant unlawfully convert the property described in the complaint? Yes. (2) If so, what damage has the plaintiff sustained thereby? Two hundred and fifteen dollars and interest from 18th day of April, 1889, to date, at 6 per cent."

First exception: In addition to the issues agreed upon the defendant tendered the following issue, which the court declined to submit to the jury, and the defendant excepted: "Are the plaintiff and defendant tenants in common of the property alleged to have been converted?" The plaintiff introduced a mortgage executed by John T. McDonough and wife to the plaintiff for the machinery described in the complaint, and also the note secured thereby, for $200, $100 of which was due March 20, 1886, and $100 of which was due March 20, 1887, and indorsed thereon was a credit of $17.00 November 23, 1887.

Second exception: The plaintiff was examined in his own behalf, and testified: "I loaned McDonough money. He said he wanted to buy machinery. (Objection by defendant. Objection overruled, and exception by defendant.) The machinery he gave the mortgage on was bought with this borrowed money. It consisted of a turbine wheel, cog-wheel, shaftings, pulleys, etc., necessary to run the mill, and was worth at the time of the conversion $215. It was put in the mill. The defendant tore it up. I saw him do it, and forbid him. He said he was responsible, and would carry it away. He took it away April 18, 1889. The mortgage was made on the machinery before it was put in the mill." Cross-examined, he testified: "The mill seat was jointly owned by defendant and myself. We had first a twelve-foot wheel. The mill hadn't been in operation for two years. A portion of it was rotten. I objected to his carrying it off that day. He said he was going to carry it off if he could. It was some months after the machinery was bought before it was put in the mill. My mortgage was registered first. The turbine is there now, but not by my consent. I did not receive it. I don't know who brought it there." John McDonough, a witness for the plaintiff, testified: "All property taken was worth $340. The property sued for was worth $215. It was taken by the defendant April 18, 1889. The plaintiff did not give permission. I saw it on the defendant's wagon. The defendant's team brought the wheel back seven months afterwards. I executed the mortgage before the property was put in the mill." Cross-examined, he testified: "When the mortgage was executed the turbine alone had not been placed in position. The other property, not sued for, had been." There was other evidence for the plaintiff tending to show the manner of the removal of the property by the defendant, and that it was worth $215. The defendant, being examined in his own behalf, testified: "I moved the machinery sued for from the mill, but did not injure it. I afterwards carried it back to the mill. I got the mud off it, and put three quarts of oil on it. No part of it is missing."

Third exception: The defendant proposed to show by the witness and by the records in the case of Bowling v. McDonough, lately pending in Granville superior court, that the interest of McDonough (one-half) in the mill-site was sold by order of court in said case, and purchased by the defendant. Offered--First, in mitigation of damages; and, second, to show bona fides. Objection by the plaintiff, for the reason that the record does not show that the property sued for was the subject of said action, and because the plaintiff was not a party to said action. Objection sustained, and exception by the defendant. Cross-examined, the defendant testified: "The plaintiff forbade my taking the property. I took it up by force. It was not nailed down. The shafting was let into a box of casting. That was let in a sill on the ground. The box was either set on the sill or mortised in it." William Harris, Bernard Bowling, and John Davis, witnesses for the defendant, testified that they helped the defendant carry away and bring back the machinery; that it was not injured; and that all of it was brought back. Jerome Bowling, a witness for the defendant, testified: "I have had experience in mills. The ·ink' which holds the shafting is let into a square mortise in the sill, which sets on the ground."

Fourth exception: The defendant asked the following instructions: (1) If the jury believe that the plaintiff and defendant are tenants in common of the property in dispute the plaintiff cannot recover. (2) In this, case, the plaintiff, having made no demand on the defendant for the property in dispute, cannot recover at all in this action. (3) At most, the damages done the plaintiff in this action, according to his own evidence, cannot exceed the actual damage done the property by the defendant or his agents while the property was in the possession of said defendant. (4) There is no evidence in this case that the defendant has damaged the said property at all. (5) The jury can act only on the evidence in this case, and in no aspect can the jury find a verdict for the actual value of the property. (6) There has been no unlawful conversion of the property by the defendant under the evidence. (7) McDonough having made a payment of $17 on the mortgage, Bowling was an equitable tenant in common with Waller to the amount of the excess over and above the mortgage of said Waller in the mill property and in the property removed. All of the above instructions were refused, and the defendant excepted.

Fifth exception: The court charged the jury that if the jury believe that the defendant took the personal property sued for into his possession, the plaintiff being present forbidding, and carried the same away, exercising a dominion over the same in denial of and inconsistent with the rights of the plaintiff, it...