Federal Finance & Credit Co. v. Teeter, 196 N.C. 232 (1928)

Oct. 24, 1928 · Supreme Court of North Carolina

196 N.C. 232

FEDERAL FINANCE AND CREDIT COMPANY v. MARSHALL TEETER.

(Filed 24 October, 1928.)

1. Replevin — Parties—Surety—Claim and Delivery.

Tbe liability of the surety on a replevy bond in claim and delivery is not required to be determined in a separate action.

2. Trial — Instructions—Harmless Error.

Where but one inference of fact can be drawn from all the evidence in the case, and the jury has accordingly so answered the issue, an erroneous instruction thereon is not reversible error.

Appeal by defendant from Bond, J., and a jury, at March Term, 1928, of Durham.

No error.

The issue submitted to the jury and the answer thereto were as follows : “What, damage, if any, has the plaintiff sustained on account of the wrongful detention of said automobile by the defendant since the issuance of claim and delivery herein? Answer: $574, with interest.”

B. H. Sykes and B. P. Beade for ‘plaintiff.

Hartsell & Hartsell for defendant.

Per Curiam.

This was a civil action brought by plaintiff to recover balance due on an automobile with the ancillary remedy of claim and delivery for said automobile, the same being replevied by the defendant upon the giving of a bond in the sum of twelve hundred dollars ($1,200).

Tbe first question: “Can all tbe questions involved in an action, including tbe liability of tbe surety on replevin bond, be settled in one suit ratber tban bringing separate and independent actions?”

We tbink so, under our liberal practice. Tbe defendant gave an undertaking “with damages for tbe deterioration and detention.”

In Moore v. Edwards, 192 N. C., at p. 448, it was said: “We can find no statutory provision prohibiting separate actions in a ease of tbis kind. It is no doubt better 'practice to.try out the entire controversy in one actionSee Polson v. Strickland, 193 N. C., 299; Crump v. Love, 193 N. C., 464.

Second. “Where, from all'tbe evidence before tbe court tbe jury can draw but one inference, will a new trial be granted on account of .error in tbe charge of tbe trial judge ?”

When tbe replevy bond was given by defendant, it was for $1,200 (C. S., 836), “to the effect that they are bound in double tbe value of tbe property.” So, when tbe property was replevied and taken by defendant, it was valued at $600. Defendant kept tbe car for some eighteen months and it was returned to plaintiff. All of tbe evidence was to tbe effect that it was in bad condition, and when sold at public auction, after notice, a large crowd being present, it only brought $26.

One of tbe witnesses testified: “It brought as much or more tban it was worth.” Another testified: “I have bad experience in selling secondhand automobiles as an auctioneer. I tbink the car brought all it was worth at that time.”

It will be noted that tbe jury deducted tbe $26, tbe amount tbe automobile sold for, from tbe $600, and their verdict was for $574. Tbe jury were warranted on all tbe evidence to return tbe verdict they did. Tbe charge on tbe measure of damage, although erroneous, was harmless.

No error.