Womble v. Leach

• Court: North Carolina Supreme Court
• Writing for the Court: SMITH
• Citation: Womble v. Leach, 83 N.C. 84 (N.C. 1880)
• Decision Date: 30 June 1880
• Parties: JORDAN WOMBLE v. M. T. LEACH.

83 N.C. 84

JORDAN WOMBLE

v.M. T. LEACH.

Supreme Court of North Carolina.

June Term, 1880.

CIVIL ACTION tried at Spring Term, 1880, of WAKE Superior Court, before Gudger, J. Verdict for plaintiff, judgment, appeal by defendant.

Mr. A. M. Lewis, for plaintiff .

Messrs Reade, Busbee & Busbee, for defendant .

SMITH, C. J.

The plaintiff's claim to the cotton, the recovery of which, or its value, is the object of this action, is derived under an agricultural lien created by a mortgage made March 2, 1877, by one Sandy Williams, pursuant to the provisions of the act of 1867 (Bat. Rev., ch. 65, § 19,) which cotton he alleges has been appropriated by the defendant to his own use.

The defendant's counsel moved that the action be dismissed, and being overruled, put in his answer denying the plaintiff's right and asserting title in himself under a similar instrument executed on the 20th day of the same month.

Issues involving the matters in dispute were submitted to the jury and their responses are all favorable to the plaintiff, and judgment being rendered thereon, the defendant appealed.

The record shows various exceptions taken during the progress of the trial, which will be considered in their proper order:

1. The refusal of the motion to dismiss the action: This is put on the grounds, first, that the complaint does not contain a sufficient statement of a cause of action, and if it does, secondly, that it is not within the jurisdiction of the court. We think neither proposition can be maintained. The complaint avers title to the crop raised by the said Sandy Williams and conveyed by his mortgage to the plaintiff, its delivery to the defendant in the fall of the same year, its value and its appropriation by the defendant, after demand, to his own use. This is a concise and definite statement of every material fact upon which the right to recover depends, and complies with the requirements of C. C. P., § 93, construed in Moore v. Hobbs, 77 N. C., 65.

The action is for a tortious taking and withholding of the plaintiff's property, and the damages claimed therefor are for more than fifty dollars, of which the superior court has exclusive jurisdiction. Acts 1876-'77, ch. 251. The defendant's counsel argued that as the value of the property was sought the obligation of the defendant to account therefor arose out of an implied contract, and under the authority of Winslow v. Weith, 66 N. C., 432, was cognizable only before a justice of the peace. This is a misconception of the principle of law recognized and acted on in that case. The rule is this: When one wrongfully takes the personal property of another and sells it, the owner may waive the tort, affirm the contract of sale and sue for the proceeds, as money received to his use, and this would be an action upon an implied contract.

2. During the trial, evidence was offered and, on objection, admitted to prove that a part of the advances required by the plaintiff's mortgage was made by him under an order of the mortgagor. The exception was not pressed in this court, and is clearly unavailing. The delivery upon an order is a delivery for all legal purposes to the person who gives the order. It was not necessary for Williams to go in person for the articles needed, his order answers the same purpose and the authority, whether in writing or parol, justifies the delivery. Nor was the plaintiff bound to see that the property went to Williams and was used on his farm. The plaintiff's duty was discharged by furnishing them.

3. There were also exceptions taken to the refusal of the court to give certain instructions to the jury, as follows: (1) There was no evidence that the cotton converted by defendant was raised on the land of Williams, nor (2) That it was of the crop of 1877, nor (3) That the advances were made by the plaintiff after the execution of his mortgage, and (4) That the articles furnished were of the kind required to create the statutory lien, not being “““ money or supplies” advanced “to be expended” in the cultivation of the crop.

The identity of the crop conveyed to the plaintiff with that delivered to the defendant is averred in the complaint, not denied in the answer, and is not an issue submitted. The plaintiff in section 2 of his complaint says “that the said Sandy Williams made of the crop of 1877 aforesaid” (referring to the previous allegation of the mortgage of the crop to himself) “one and a half bales of cotton and delivered the same to the defendant on or about the latter part of the year 1877, which said cotton was worth at the time of delivery to the defendant, about sixty-five dollars.” The defendant replies: “As to the allegation in the second section of the quantity of cotton made by Sandy Williams, defendant has no knowledge or information sufficient to form a belief,” and then proceeds to assert his own title thereto. The second issue is drawn to meet this point only--“What amount of cotton raised by Sandy Williams upon the land mentioned in the mortgage in the year 1877, did the defendant receive from him?” The identity of the cotton was not in controversy, and the jury were only to ascertain as to its quantity and value. The instruction asked was not...