116 N.C. 827 | N.C. | 1895
The plaintiffs, at the time of commencing their actions (afterwards consolidated and tried as one against the defendants, a corporation) issued and levied attachments upon certain real and personal property which they alleged belonged to the defendant. The National Bank of Asheville, The Battery Park Bank and the Western Carolina Bank, the appellees, intervene and claim the personal property attached by virtue of an alleged purchase by them from the defendant on the 4th of November, 1891, twenty days before the attachment was levied. The only matter for our decision is whether that sale and purchase constituted a valid transaction and passed the title to the property to the intervenors. The intervenors, having to show by preponderance of testimony their title to the property took upon themselves that burden and attempted to show a valid sale to them, at a fair price, by an agent of the defendant. The verdict of the jury establishes the sufficiency of the price agreed on as a fair one and there is no contention over that matter. It is admitted by all parties that the property which the intervenors claim under the alleged sale embraces the entire stock of manufactured goods (furniture) which the defendant had on hand, at the time of the sale, valued at about $19,000, and also a lot of flooring valued at about $3,000. W. W. Avery, the defendant’s agent, who made the alleged sale to the intervenors, .testified that he got a full price for it, but explains that the intervenors were creditors of the defendant, some of the debts not being due at the time of the sale, and that they took the property at the price agreed on, $22,081.11, “as a payment on their debts.” The witness Avery in writing to the Secretary of the defendant corporation, two days after the alleged sale, made the following statement of the transaction:
*830 “Asheville, N. C., Nov. 6th, 1891.
Mr."Wm. JEdminston, Knoxville, Term.,
Deab Sib: — As telegraphed you last night, the three banks here, acting together, attached for the overdue debts due them. But they háve not sued us individually and I do not think they will, if we can make the property pay them out. They were all cocked and primed for me when I went up yesterday afternoon to meet them at five o’clock, had all the papers issued and ready to serve. I wanted to get some time but they would not consent to give me any, as they seemed to be afraid some other creditor would come down on us and get the drop on us before they did. They were going to attach everything we had, and I knew if they did so and got all our property into the hands of a receiver, it would be sacrificed to such an extent that it would never come anywhere near paying our debts, as all of the creditors of the concern would be treated alike by the receiver, there would be a great deal of paper left unpaid with our personal endorsement on it, andón this paper we would be sued and none of us ever get out from under the load of debts and judgments that would be piled up against us. So, I asked them if they would be willing to take our furniture and lumber as a payment on the paper which they held against us and on which we were individually endorsed, and give us an opportunity to sell it for them and get as much out of it to pay on these papers as we could. After consulting some time they agreed to do this and I made the sale to them, as it was the only thing left for me to do, and seemed to be the best thing I could do for all of us.but they still insisted upon attaching our real estate and other property for the overdue debts, in order, as they said, to make‘themselves secure. This they did yesterday afternoon and our factory is now in the hands*831 of tlie Sheriff. To-day they seem to feel that their debts against ns are secure, and, while I do not know positively, I think they will be inclined to let us work it out, if we feel so disposed, and make the property pay them as much as we can of their debts ; but they have come down on us so suddenly and unexpectedly that I have no confidence left in any of them.”
The question now arises, did ~W. W. Avery have authority to dispose of the property in the manner in which he did ? As to his general powers, he was-the treasurer of the company and he testified that he “sold all the furniture manufactured at the works of the company,” and “used the proceeds of sale for the benefit of the company in carrying on its general businessthat “it was agreed that he should stay at Asheville and run the business ; that from the formation of defendant company he had charge of it, managed it, sold its furniture, borrowed money foj; it and paid its debtsthat he had done this “for two years and up to the date when the furniture in question was sold to the interveners without any objection from the directors or stockholders of corporation, but with their full knowledge and consent, and that he managed all the affairs of the company.” And it is also contended for the intervenors that if the alleged sale by Avery was outside the scope of his general powers, described as above, his conduct was nevertheless authorized by the directors of the defendant corporation, who afterwards met at Cincinnati and “talked over informally the business of the company; that it owed a large amount of debts and that the directors would have to make some arrangement to meet them as they l)eoa/m,e due, which would be at an early day.'” The particular authority thus given him is then stated by the witness; “they all agreed and so instructed me to come back to North Carolina, sell the furniture we then had on hand and
We think that the agent Avery, transcended his powers as claimed for himself by his own testimony when lie attempted to make such a disposition of the property of the corporation as this transaction discloses, and therefore ■that no title to the property passed to the intervenors in the attempted sale. Avery claimed, and the testimony shows, that he had very large-powers in the active management for which the company was organized, the manufacture and sale of furniture, but we cannot find from a reading of the whole testimony that the company ever entrusted him with the power to do what he attempted to do in the transaction above set forth. His agency concerned the running and continuation of the business. By his act he practically put an end to it. Under his powers he was to sell the product of the defendant manufacturing company, purchase material for its use, borrow money and pay its debts. He was not authorized to take the entire stock of furniture and also a large quantity of lumber, agree upon a value for it with certain of the creditors of the corporation, turn the property over to them and have the value placed upon its indebtedness^some of which was not due, as a credit. Which thing he did. At the time of the attempted sale the agent gave to the preferred creditors (the inter-venors) information concerning the company’s matters, showing its large indebtedness and its inability to pay the same, which resulted in the immediate action of the creditors, the intervenors, by attachment of the other property of the defendants, and thereby closing up the business of the company. However broad may be the general power of an agent to conduct'the business of a manufacturing corporation, it cannot, in reason, be extended to cover such a transaction as the one which the agent in this _
But the intervenors contend that if Avery did transcend his powers, yet his action was afterwards ratified by defendant corporation, and by this ratification any defect in their
The plaintiff excepted because, first “The Judge should have charged the jury that the meeting at Cien Nock Hotel was not lawful” and second, “Because there was no evidence to warrant the Judge in submitting to the jury the question whether or not the meeting at Glen Nock Hotel was lawful.” Our opiuion is that, upon the undisputed facts concerning
There was error in His Honor’s refusal to charge on the matter of ratification as he was requested to do by the plain tiff.
After what has been said in this opinion it seems unnecessary to discuss any other of the exceptions filed by the plaintiff.
New Trial.