Commercial Finance Co. v. Culler, 236 N.C. 758 (1953)

Jan. 6, 1953 · Supreme Court of North Carolina

236 N.C. 758

COMMERCIAL FINANCE COMPANY v. LUELLA R. CULLER and HOOTS MOTOR COMPANY.

(Filed 6 January, 1953.)

Reference § 3—

An action on a note given to finance an automobile, in which all payments alleged by defendant are admitted by plaintiff, does not involve a long account with charges and discharges as contemplated in G-.S. 1-189 and is not subject to compulsory reference notwithstanding further counterclaims for usury and damage for the moi’tgagee’s alleged breach of his agreement to procure insurance on the car.

Appeal by defendant Luella R. Culler from Rousseau, J., April Term, 1952, of Eoksyth.

The plaintiff instituted this action to recover the sum of $362.65 alleged to be due and owing to the plaintiff as the holder of a note executed by the defendant Luella R. Culler to the plaintiff on 28 December, 1950, in the sum of $638.50, and secured by a chattel mortgage of even date, on a 1947 Kaiser Eordor Sedan. Demand for payment of the note is alleged to have been made and refused. A writ of claim and delivery was issued at the time of the institution of the action for the possession of the automobile described in the chattel mortgage, but the car being in the possession of the defendant Hoots Motor Company as bailee of the defendant Luella, R. Culler, the possession thereof has not been taken under the writ.

According to the allegations of the answer filed by the defendant Luella R. Culler, she purchased a Kaiser automobile on or about the 27th day of July, 1949, and in order to complete tbe transaction sbe obtained a loan of $900.00 from tbe plaintiff. Sbe alleges tbat sbe executed ber note, secured by a chattel mortgage, on tbe automobile in tbe sum of $1,340.85 to tbe plaintiff; tbat it was understood and agreed tbat tbe sum of $440.85 included in tbe note was for carrying charges over a period of 21 months, including a $75.00 deductible insurance policy on the automobile to protect ber against loss in tbe event tbe automobile became damaged as a consequence of any collision or traffic accident.

It is admitted tbat tbe appellant borrowed an additional $100.00 from tbe plaintiff on 28 December, 1950, but sbe denies tbe execution of any agreement at tbat time or any other time to pay tbe plaintiff tbe sum of $638.50, or tbat sbe signed any chattel mortgage on said date. Sbe alleges, however, tbat on 28 December, 1950, sbe was again advised tbat the insurance on her car was in full force and tbat the policy thereon would expire 27 May, 1951; tbat tbe defendant’s car was in a collision on or about 17 March, 1951 and damaged to tbe extent of $440.00; tbat tbe plaintiff was promptly informed of tbe collision and requested to notify tbe insurance company; tbat tbe plaintiff then advised ber tbat no insurance bad been obtained on ber car and none was in force at tbe time of tbe collision, and tbat ber loss was not covered in any way.

Tbe appellant denies tbat sbe is indebted to tbe plaintiff in any amount, and by way of further answer, setoff, and counterclaim pleads certain payments, giving tbe date and amount of each, totaling $960.50, and tbe plaintiff in its reply admits tbe receipt of such payments. Tbe appellant set up a claim for damages in tbe sum of $440.00, resulting from tbe failure of tbe plaintiff to have ber car covered by insurance in accord with tbe alleged agreement, and a claim for usury charged and collected in tbe amount of $388.00, and prays tbe court for judgment against tbe plaintiff for $440.00 in compensatory damages; for $388.00 for usury, and punitive damages in tbe sum of $10,000.

During tbe progress of tbe trial, tbe court, on its own motion, entered an order of compulsory reference as to all issues raised by tbe pleadings, both of fact and law, on tbe ground tbat tbe controversy “requires tbe examination of long accounts and a series of transactions between tbe parties, and tbat tbe controversy is so involved tbat it cannot be readily presented to a jury.”

Tbe defendant Luella R. Culler appeals and assigns error.

Willicum S. Mitchell for plaintiff, appellee.

Eugene H. Phillips for defendant, appellant.

DeNN't; J.

A compulsory reférenee is not authorized on tbe ground tbat tbe trial requires tbe examination of long accounts in an action instituted to recover on a promissory note or an account where tbe receipt of each and every payment alleged to have been made thereon is admitted. Acceptance Corp. v. Pillman, 235 N.C. 295, 69 S.E. 2d 563; Lee v. Thornston, 176 N.C. 208, 97 S.E. 23; Peyton v. Shoe Co., 167 N.C. 280, 83 S.E. 487; Hall v. Graige, 65 N.C. 51. Where numerous payments on an indebtedness have been made, the case involves only a matter of computation of figures and has none of the elements of a long account with charges and discharges, as contemplated in the statute which provides for a compulsory reference. Hall v. Graige, supra.

It is true that by reason of the counterclaims for usury and damages as set forth in the pleadings, this action is somewhat complicated, but these additional matters do not raise questions which may be referred under an order of compulsory reference within the purview of Gr.S. 1-189.

The order of compulsory reference entered below is set aside and the cause remanded for trial by jury unless otherwise disposed of by consent of the parties.

Reversed.