Holding v. Daniel, 217 N.C. 473 (1940)

April 17, 1940 · Supreme Court of North Carolina

217 N.C. 473

T. E. HOLDING v. B. P. DANIEL.

(Filed 17 April, 1940.)

Appeal and Error § 6b—

A general exception to the judgment does not present ior review errors in the trial of the cause, and the Supreme Court, upon such exception, cannot grant a new trial upon appellant’s contention that the court, notwithstanding that it did not submit to the jury any issue relating to defendant’s counterclaim, rendered judgment in defendant’s favor upon his counterclaim.

Appeal by plaintiff from Stevens, J., at May Term, 1939, of Waice.

No error.

The plaintiff brought this action to recover one Dodge automobile which he alleged was his property and wrongfully detained by the defendant. The defendant denied the ownership of the plaintiff and alleged that his possession of the automobile was lawful by reason of the fact that he had loaned to a partnership, composed of T. E. Holding and H. S. Satterwhite, $300.00, for which Satterwhite, the partner and business manager, had executed and delivered to the defendant a promissory note, and bad executed a chattel mortgage on tbe Dodge coupe in question, and delivered tbe automobile into tbe possession of tbe defendant, authorizing and instructing him to retain possession thereof, which possession was continued until tbe time it -was seized by tbe plaintiff in this action under claim and delivery proceedings.

Tbe defendant further set up as a counterclaim tbe said debt and interest thereon, which be alleged tbe plaintiff bad repeatedly acknowledged and promised to pay.

Tbe plaintiff replied to tbe answer, denying that there was any partnership between himself and Satterwhite and admitting only that Satter-white was tbe business manager, with authority to buy, trade, and sell automobiles, and to pay for automobiles out of proceeds of sale and capital furnished by tbe plaintiff, and denying that Satterwhite bad any other authority, and specifically averring that be bad no authority to execute notes or chattel mortgages, or to pledge or mortgage tbe property of tbe plaintiff.

Tbe defendant filed an amended answer, in which be admitted that Satterwhite was only tbe agent and general manager in charge of tbe automobile business owned and operated by tbe plaintiff, but reaffirming tbe statement that as such manager be bad borrowed tbe money, executed tbe promissory note — evidence of tbe loan' — and executed and delivered a chattel mortgage on tbe automobile sought to be recovered by the plaintiff; further alleging that tbe money was, in fact, used in tbe business of tbe plaintiff and that plaintiff bad ratified tbe actions of tbe defendant.

Holding testified that tbe automobile was bis, and that after be bad obtained title and possession to it, it was driven out on tbe road by Mr. Satterwhite and left there, and Mr. Daniel “pulled it in to bis bouse,” thus acquiring possession of it. He further testified that Satter-white was only manager of bis business, without authority to sign any notes and papers, and more specifically without any authority to manage any of bis property or sign a mortgage therefor.

Tbe evidence tends to show further that Satterwhite bad drawn a check for $650.00 to pay tbe balance due tbe Sales Company on a car, which check was returned unpaid by tbe bank; that be secured time from tbe local bank to get up money to take up tbe check, which be borrowed from tbe defendant Daniel and another person, executing to Daniel tbe chattel mortgage on tbe car referred to. Later, Satterwhite drove tbe car out on tbe road and disappeared.

Satterwhite testified: “It was in December when I wrote this $650.00 check, and tbe business went on until January 4, 1938, about two weeks later. On January 4, 1938, I left Wake Forest, and went to Richmond. I left on a Dodge coupe, tbe one which is tbe subject of this action. I ■drove it out in the country about 3% miles on the highway, and I left the ear on the side of the highway going out to Bunn from Wake Forest. I locked it and took the switch key with me; I did not lock the door.”

“I got out of the car and walked two or three hundred yards; I didn’t know where I had started — I just got out of the car and walked down the road, woods on either side, and I didn’t know where I was going nor where I had started, and I didn’t have any arrangements for anyone to pick me up, nor any arrangements for anyone to pull the car in.”

The witness further stated that he had written to Nash-Steele that he had lost so much money for Mr. Holding that he didn’t have the nerve to go to him; that he didn’t try to find Mr. Holding to ask him if he might sign the mortgages and notes. He stated, however: “The conditional sales agreements that went through the credit company were signed by Mr. Holding — he signed all of them. They are the same as mortgages. When we went into business he told me to sign all of the titles and said, ‘I want to sign the papers going to the credit company.’ ”

The plaintiff denied that he had ever ratified the transactions had between Satterwhite and Daniel, the defendant, or had ever promised to pay him anything on his claim.

At the close of plaintiff’s evidence, and again at the close of all the evidence, the plaintiff moved for judgment of nonsuit as to defendant’s cross action, and in each instance the motion was overruled, and plaintiff excepted.

Upon issues submitted to the jury, they found that Satterwhite was authorized to execute and deliver the chattel mortgage upon the car, as contended by the defendant; that the plaintiff was not the owner and entitled to the possession of the car, and that the value of the automobile was $500.00. No issue was tendered or submitted covering defendant’s cross action. Judgment followed, reciting the issues and answer, and in the judgment the court undertook to take cognizance of defendant’s counterclaim as follows: “NOW, THEREFORE, it is hereupon ORDERED, ADJUDGED AND DEGREED that the plaintiff recover nothing in this action, and that the defendant have and recover on his cross action herein, of the plaintiff and his surety on the claim and delivery of bond herein, the sum of $300.00, with interest thereon at the rate of six per cent per annum from the 23d day of December, 1937, until paid."

The judgment further provides that if the $300.00 and interest is not paid in full in “fifteen days from and after the 20th day of May, 1939,” the automobile, the subject of the action, shall be sold as provided in the chattel mortgage.

Plaintiff appealed, assigning errors.

John G. Mills, Sr., and Clem B. Molding for plaintiff, appellant.

J ones & Brassfield for defendant, appellee.

Pee Curiam.

This case presents many anomalies due to the method of trial. The defendant seems to have gotten his counterclaim allowed without the intervention of a jury. The general objection and exception to the judgment does not put us in a position to render the plaintiff any aid in this respect since, standing alone, it does not justify a review of the trial, and we find no exception in the record pertinent to that phase of the case. We do not regard the exceptions to the evidence nor to the motion of judgment as of nonsuit meritorious.

We find

No error.