Cothran, J., dissenting.
Appeal from Richland County Court; M. S Whaley, Judge.
Action by S. K. Young against the Corbitt Motor Truck Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Note dated March 25, 1927, due April 25, 1927, signed S. K. Young, introduced in evidence, and marked, "Defendant's Exhibit 1, McF":
"Columbia, S. C, March 25th, 1927. $100.00 "April 25th, 1927 after date I promise to pay to the order of Corbitt Motor Truck Company, Henderson, N. C, One Hundred Dollars, at South Carolina National Bank, Columbia, S. C, for value received, with interest at six per cent. per annum from date until paid, and if allowed by law, 15 per cent. of the principal and interest of this note as attorney's fees, if placed in the hands of an attorney for collection, and authority, irrevocably to any attorney-at-law to appear for me/us in any court, and waive the issue and service of process and confess a judgment against me/us in favor of the holder hereof, either severally or jointly with any endorser or endorsers hereof, for such amount as may appear to be unpaid hereon after maturity together with costs and attorney's fees, and to release all errors and waive all right if ap
peal. Value received without relief under any exemption or insolvency law.
"The express condition of purchase and sale of Model 21 Corbitt truck No. 217043 for which this note is given, is such that the title and ownership, notwithstanding delivery, does not pass from said Corbitt Motor Truck Company, until this note and interest are paid in full; and if same should become due and remain unpaid, or any portion of the same, Corbitt Motor Truck Company, or any of its agents, are hereby authorized to enter upon our premises, or wherever it may be found, and take possession of said Model 21 Corbitt truck No. 217043 and sell same either at public or private sale, and place proceeds as a credit on this note. This note is to become due and payable upon the removal of the maker from the County in which they reside, or whenever the holder deems itself insecure.
"The subscribers and endorsers hereby severally waive presentation for payment, protest and notice of protest, and non-payment of this note.
"S. K. Young [Seal.]
"Witness: A. W. Martin."
Copy of conditional sales contract introduced in evidence, and marked, "Plaintiffs Exhibit 14, McF":
"Corbitt Motor Truck Company "Henderson, N. C.
"Conditional Sale Agreement
"This agreement, made this 25th day of March, 1927 between Corbitt Motor Truck Company, Henderson, N. C. first party, his or its successors, agents or assigns (hereinafter, collectively called 'Seller') and S. K. Young, Columbia, S. C, second party (hereinafter called 'Purchaser')
"Witnesseth:
"That Seller in consideration of the payments, covenants, agreements and conditions herein contained which on the part of the purchaser are to be made, done and performed, has this day sold and delivered, but upon the conditions hereinafter recited, to the Purchaser one Corbitt Truck No. 217043, Model 21 (hereinafter called the 'Corbitt Motor Truck'), for Thirteen Hundred and Twenty-seven Dollars ($1,327.00), paid or to be paid by the Purchaser to the Seller or order One Hundred Twenty-seven Dollars ($127.00) upon the execution of this agreement and the balance, Twelve Hundred Dollars ($1,200.00) in installments as follows:
"$100.00 on April 25th, 1927; $100.00 on May 25th, 1927; $100.00 on June 25th, 1927; $100.00 on July 25th, 1927; $100.00 on August 25th, 1927; $100.00 on September 25th, 1927; $100.00 on October 25th, 1927; $100.00 on November 25th, 1927; $100.00 on December 25th, 1927; $100.00 on January 25th, 1928; $100.00 on February 25th, 1928; $100.00 on March 25th, 1928; which installments of purchase price shall bear interest at the rate of six per cent. per annum from ———— and are to be evidenced by promissory notes made by the purchaser to the order of the seller, bearing date hereof and maturing on the due dates of said respective installments.
"The Corbitt Motor Truck is subject only to manufacturer's warranty, if copy of such warranty is annexed hereto; and if not so annexed, Purchaser buys Corbitt Motor Truck as it stands, and no warranty, guaranty of representation as to the Corbitt Motor Truck or any of its equipment is otherwise made or given by Seller.
"The Conditions of this Agreement Are, that delivery of the Corbitt Motor Truck by Seller to Purchaser does not pass title thereto, but both the Corbitt Motor Truck and the title thereto shall not pass by such delivery but are and shall remain vested in and be the property of the Seller and assigns (and any extension or assignment of said notes shall not waive this or any other condition herein contained) until said notes evidencing said installments of purchase price are paid in full.
"Upon any default in the payment of the principal or interest of any of said notes, then any holder of any of the notes then unmatured may at his option declare all of said notes immediately due and payable and the same shall thereupon become immediately due and payable. The Purchaser until said notes are paid in full shall not sell, let, assign, encumber, use for hire or dispose of the Corbitt Motor Truck (without written consent of the Seller) and the purchaser shall keep and maintain the Corbitt Motor Truck in good order and repair. Purchaser shall keep Corbitt Motor Truck free of all liens, taxes, and charges and shall at his expense and in his name cause the Corbitt Motor Truck to be registered and licensed in compliance with law. Upon any default in payment or breach of condition or covenant herein made by the Purchaser, or if the Seller shall deem the security for the payment of said notes intended to be afforded hereby insufficient or unsafe, the Purchaser shall on demand by the Seller forthwith deliver the Corbitt Motor Truck in as good condition as when received by Purchaser upon sale thereof (ordinary wear and tear excepted) to Seller, and should Purchaser fail or refuse upon such demand to deliver the Corbitt Motor Truck as aforesaid to Seller, the Purchaser agrees that the Seller shall have the right without any further notice or demand forthwith to take possession of the Corbitt Motor Truck, wherever found, and for such purpose Purchaser hereby licenses and authorizes Seller to enter any premises of the Purchaser with or without force or process of law, and forthwith take possession of the Corbitt Motor Truck; if Seller shall so take possession of the Corbitt Motor Truck by reason of any default or
breach hereof or with respect to said notes by Purchaser, Purchaser agrees that all payments made by Purchaser with respect to the indebtedness represented by said notes shall belong to and be retained by Seller, as liquidated damages for the non-fulfillment or breach of performance of this agreement, for loss in value with respect to the Corbitt Motor Truck, and for the rental value thereof. Seller may, at option by collection, suit or otherwise, enforce payment of said notes, and no suits or legal proceedings with respect thereto shall however, be deemed any waiver of said right of Seller to take possession on default or breach as aforesaid. Upon the Seller so taking possession of the Corbitt Motor Truck, Seller may sell the Corbitt Motor Truck at public or private sale at any time thereafter without any notice to the Purchaser, and if upon such sale the proceeds thereof are insufficient to pay the sums remaining unpaid with respect to said notes, and the expense caused by such repossession, removal, reparation, storage, liens, and sale, any deficiency shall be paid by, and any overplus shall be paid to the Purchaser. Purchaser acknowledges receipt from Seller of a true copy of this agreement.
"In Witness Whereof, Seller and Purchaser, parties hereto, have hereunto subscribed their signatures and set their seals hereto in duplicate on the day and year first above written.
"Corbitt Motor Truck Company. [Seal.]
"Witnesses: A. W. Martin.
"If this truck does not prove satisfactory it may be turned back and unpaid notes canceled.
"A. W. Martin." Defendant's Motion for Nonsuit.
"Mr. Dickey: I would like to make a motion for a nonsuit upon the ground that there is no evidence of conversion.
"2. Upon the further ground that an action in trover will not lie, plaintiff's remedy being to bring an action in replevin, or an accounting against defendant, in that it appears from the uncontradicted evidence that the defendant had a mortgage on the alleged property upon which default had been made.
"3. Upon the further ground that the negligence of the plaintiff was the proximate cause of his injury, if any, in that it appears under the uncontradicted evidence that he made no effort to pay this note on the day that it was due.
"4. Upon the further ground that it appears from the evidence that plaintiff has only a qualified or limited interest in the truck, and he has brought the action upon the ground that he is the full absolute owner."
Defendant's Motion for Directed Verdict.
"The defendant moved that the Court direct a verdict as to the amount due on defendant's uncontradicted counterclaim.
"The defendant moved for a directed verdict as to punitive damages upon the ground that there was no evidence to sustain a finding for punitive damages."
Judge's Charge.
"Mr. Foreman and gentlemen, you all have heard the pleadings read at the beginning of the trial, some of them here are rather lengthy, so I am going over them briefly, the claims of the respective parties and their contentions, because I have to give you the law in regard to the issues arising out of those contentions, and you have to say what the facts are and come to your conclusion one way or the other as to the various matters.
"Plaintiff alleges here that it owned a truck of the value of $1500.00 and that the...
