Wilson v. Hughes

• Citation: 94 N.C. 182
• Parties: S. OTHO WILSON et als. v. H. I. HUGHES.
• Decision Date: 28 February 1886
• Court: North Carolina Supreme Court

94 N.C. 182

S. OTHO WILSON et als.

v.H. I. HUGHES.

Supreme Court of North Carolina.

February Term, 1886.

CIVIL ACTION, for the specific recovery of a chattel, tried before Clark, Judge, and a jury, at August Term, 1885, of WAKE Superior Court.

The following is the case settled upon appeal for this Court:

“When the case was called for trial, plaintiff moved the Court for judgment on the pleadings, upon the ground that defendant's answer admitted that plaintiffs were the owners and entitled to the possession of the mare, the property in controversy. The motion was denied and plaintiffs excepted.

One Thos. G. Jenkins was called as a tales juror and was challenged by defendant for cause, the cause assigned being that said juror had a cause pending and at issue in said Court. The facts were, that the juror was a party to a cause, which had at a previous term of the Court been referred by consent. The referee had filed his report to this term, which report was confirmed and an appeal taken. Said case was the next preceding case to this one, and this case was immediately called when that case was disposed of, and the appeal therein had not been perfected, no bond having been given, and no permission obtained to appeal without bond.

The Court allowed the challenge for cause, and plaintiffs excepted.

The following issues were submitted:

1. Did the plaintiff warrant the horse to be sound?--Answer. No.

2. Did the plaintiff deceive the defendant by reason of misrepresentations or otherwise?--Answer. Yes.

3. What damage, if any, has the defendant sustained by reason of the breach of said warranty, or said deceit?--Answer. $75.00, value of the horse when sold.

The Court instructed the jury, that if they should find either the first or second issue in favor of the defendant, then, in response to the last issue, they should find the value of the horse at the sale.

There was no exception to the charge, nor any exception to evidence by the plaintiffs. The third issue, at the beginning of the case, was submitted, as follows:

“What damage, if any, has the defendant sustained by reason of breach of said warranty, or said deceit?”

The defendant's counsel first addressed the jury, and in his opening speech was proceeding upon the third issue as framed, when his Honor from the bench interrupted counsel and said: “Upon reflection, I will suggest to counsel that it will be better to change the third issue, so that the jury may find the value of the horse when sold.”

Defendant's counsel turned and faced the counsel for plaintiffs and the Court, and said: “The defendant has no objection to the change in the issue as suggested.”

The counsel for the plaintiffs made no objection to the change, and counsel for the defendant proceeded to argue the third issue to the jury, stating that said issue was, “what was the value of the horse when sold?” without objection or interruption from plaintiffs' counsel. There was conflicting evidence as to the horse's value, some witnesses putting it at fifty dollars, others at one hundred dollars. The jury found in response to this issue, “seventy-five dollars, value of the horse when sold.”

Judgment was signed, the verdict having by consent been rendered to the clerk. On the second day after the verdict, and after judgment signed, the plaintiffs moved for a new trial upon the ground that the response of the jury to the third issue was ambiguous and not responsive to the issue. The Court stated that it thought the response unambiguous and responsive. The counsel pressing the point, the Court replied: “It is a very intelligent jury, and they are now in Court, and I will ask them what they meant.” Counsel for defendant objected that only eleven of the jury were in the box. The Court replied: “I am not taking the verdict of the jury--that has been done and judgment is signed-- but merely to satisfy my own mind if there can be any doubt as to what the jury meant, I will ask the foreman.” Thereupon the foreman said, “the jury meant exactly what they had responded, $75 value of the horse at the time of the sale, under the instruction given by the Court.” Upon the verdict, the plaintiffs moved the Court for judgment for the costs of the action. Motion refused and exception by plaintiffs.

Plaintiffs insisted that the defendant was not entitled to recover judgment against them upon the counterclaim set up in the action, and particularly not for the deceit, and if defendant had been so entitled to recover, he could only recover the sum of five dollars, and not the sum of thirty-five as embraced in the judgment. The evidence was as follows: The plaintiff Wilson, while on the stand, testified that when plaintiffs got possession of the horse, they advertised him for sale, and sold him at the court-house door in Raleigh, under the terms of the mortgage. At the time the horse was delivered to the defendant, he paid the plaintiffs the sum of $60 in cash, and gave his note for $40, secured by a mortgage on the horse; that the horse was bid off by the attorney of witness, for witness, at $20; that witness kept the horse two months, within which time the horse was greatly improved in flesh, he being very poor when taken from defendant, and badly affected with a disease known as scratches; that witness at the end of two months thereafter sold said horse for $50. This was the only testimony on the subject.” Motion for a new trial; motion overruled; exception and appeal by plaintiffs.

Mr. J. A. Williamson, for the plaintiffs .

No counsel for the defendant.

MERRIMON, J. (after stating the facts).

We observe that this is called an “action of claim and delivery.” Properly and strictly speaking, there is no such action. The action commonly so-called is an action to recover the possession of personal property--some specific chattel-- and is of the nature of the action of detinue under the common law method of procedure. “Claim and delivery of personal property” is a provisional remedy, incident and ancillary, but not essential to the action. The object of such incidental provision, is to enable the plaintiff, upon giving an undertaking in double the value of the property in question, with approved security, as required by the statute, to obtain the immediate possession of the same, unless the defendant shall give a similar undertaking and security for its delivery to the plaintiff, if it shall be so adjudged, and for the payment of such costs as may be adjudged against him in the action. Thus the property or the value of it, is made secure pending the action, in such way as to answer the purpose of the final judgment. This provisional remedy is peculiar to the Code method of procedure, and gives the action something of the nature of the...