*1 TERM, 1894. 661 Cl] Company r. McKinnon.' Woolen1 J. v. D. R. H. HAYES WOOLEN McKINNON et al. COMPANY

(DEFENDANTS’ APPEAL). Delivery n Right Claim and Contralet—Repudia- — Possession— to Account. Right

tion— “ that, paid by 1. A a bill of sale which recited consideration of sum W., agent” plaintiff, bargainor conveyed for sold and a stock plaintiff agent, goods, the title in the and not in the vested may delivery maintain an of claim and for former action goods. plaintiff goods,

2. consigned Where to defendants a stock of the latter to conduct the business the name of the former to account plaintiff proceeds, plaintiff brought for all aud action of claim Held, denial, answer, delivery: defendants’ plaintiff’s ownership repudiation was a of the contract and ren- prove unnecessary plaintiff it a demand for an dered account- ing bringing and a refusal before action. delivery by 3. In the owner of a stock of under con- claim possession entitling to retain tract with defendants the latter profits paid with the title whenever the net be revested §750, amount to the defendants are entitled to an owner should profits paid accounting the amount of net over so that to ascertain may adjusting rights charged with the same the owner be parties. J., tried before of claim delivery, Ármfield, Action Term, 1893, and a. of BuNCOMbb Superior jury, August Court. . issues were submitted jury: following “ written contract set 1. Did make the the defendants Answer, Yes. in the with the plaintiff?

forth complaint “ it which owner 2. Is the and entitled to possession claims Answer, Yes. thereof? Answer, value $794.23. 3. What is the goods? IN THE COURT. SUPREME r.

“ of said Pías the failed to its perform *2 Answer, contract made with Yes. the defendants? “ 5. What sustained have the defendants by- damage reason of failure to said contract? plaintiff’s perform Answer, $300.”

The is the material from following judgment, which both parties appealed:

“Now, therefore, it is ordered and the Court adjudged by that do the recover from the defendants the plaintiff goods, chattels choses action described the inventory case, attached the in this with the complaint together costs of this action. “ It is that defendants also the adjudged upon counter-claim recover the the Jos. M. from plaintiff, Hayes Co., sum the Woolen the of for breach damages $300 of the the written contract between the plaintiff parties thereto, as set forth in the complaint.”' Merrimon, H.

Mr. James for plaintiff'. Moore, Mr. A. for Charles defendants (appellants). J.: here its action for the plaintiff brings Bukwkll, certain of has availed possession personal property, “of claim and itself of the ancillary remedy delivery,” that and under the taken the proceeding and delivered to the Sheriff plaintiff' according pro- The Code. of vision its

In the second of paragraph complaint : says That on the 9th of day April C.,

N. was the owner of lawfully possessed personal action, and chattels and choses property, forth and described annexed of about set inventory, $750, then and ever since its property.” TERM, C.] Company r. in their defendants denied This is expressly answer. it is of alleged

In the third paragraph 1892, the entered 9th of day April, on defendants: contract into the following this into 9th made entered day “This agreement, 1892, Winkleman, for and between Robert agent April, Louis, Mo., of St. M. AVoolen Ilayes Company, Joseph Petrie, R. first and D. McKinnon H. part, party Carolina, and State of North of Buncombe of the county witnesseth, that the second party part, parties of ten sum dollars consideration of the first part, *3 the the of the second him in hand parties part, to paid and the which is hereby acknowledged, of receipt the mutual covenants and of agree- further consideration mentioned, has this to the said consigned day ments herein all of a certain stock of the second goods of part parties store-house, in and a eertaiu and fixtures now belonging C.,X. all street, 47 Main No. kSouth being Mcl). Whitson, him from J. this day bought goods & Petrie. of McKinnon assignee to of .the second hold said agree

“And the part parties first of the and to part, as the party of agents business, business, which is tailoring conduct first and to it in a of the conduct part, name of the party manner, and to a correct account of all keep business-like owmers, and to furnish to the and expenditures, receipts affairs, of demanded, a correct account and to time any first all funds that come turn -over party part hands. into their the first to from

“And the of part party agrees supply are such to said busi- necessary time to time keep of second ness in and when parties part operation, IN THE SUPREME COURT. v. said have so conducted business that the net to earnings of first have amounted the sum to of party part dollars seven hundred then the title to all the fifty in said store-house remaining connected with property said business shall vest in and be the immediately property of of the second part. parties first

“And of said part agrees let party parties of the second continue said business in part said manner 1, 1893, until if such a time'is found January necessary and so desired the second parties part.

“And the of the second do in con- parties part hereby, sideration of the above-mentioned and the premises further consideration one dollar to them paid, receipt sell, which is transfer and hereby set acknowledged, all over personal property exemptions rights thereto, out of and connected arising the assignment Mcl). of the second Whitson, to J. parties of the first party part, dated assignment being April 1892, 6, and of 28, record in book the office Register of Deeds for Buncombe said State. county,

“And of the second parties sáid part agree keep insured a sum at least seven equal hundred dollars, loss, and to have the if fifty made any, paya- ble the said of the first as his party interest part, may be. appear actually *4 seals, Witness our hands and day date first above written. “D. R. McKixNON, [Seal.]

“ H. Petrie, [Seal.] WixkleMAN, “Robert [Seal.] “ Witness: “Wax. H. Lewis.”

In answer to this of the the defend- paragraph complaint 66b TERM, 1894. C.] Company r.

Woolen- ants “That in the third contained say: allegations that, untrue; of the are are paragraph complaint believe, said advised are informed and paper-writing, of which is in said believe inserted copy correctly Winkleman, third was made with one Robert paragraph, and not with the Woolen Co.” Hayes

The execution of this thus being by writing admitted effect, defendants, its far so as it related to the ownership therein, described which was conceded to property include that which was mentioned in the which has been seized under the warrant of claim and was a of law to be determined delivery, question Court. The defendants in their answer aver that the goods here were of of the stock controversy originally the firm of 6, McKinnon & Petrie, which firm on April Mel). 1892, made an to J. Whitson for the assignment creditors, benefit of their one, of whom the to each of firm said his and that reserving exemptions, thereafter the deed was executed following assignee: of North Carolina —Buncombe County. “State “Know all men these that for and con- presents $1,500 sideration of the sum of in hand to me paid by Robert Winkleman, for Jos. M. Woolen Com agent Hayes Mo., Louis, of St. pany, city whereof is receipt sold, I hereby have this and do acknowledged, day hereby sell and transfer, over, and set all and convey, assign chattels, accounts, singular,

666 IN THE SUPREME COURT. Company v.

Wooi/bn street, Main in said a correct city inventory with of which is this furnished this bill of day given sale. I, Whitson, McD. in

“In whereof J. testimony assignee the said deed of have hereunto hand set assignment, my seal, this 9th 1892. day April, Mcl). AYhitsoN, “J. Assignee, [Seal.] “ Witness: H. Lewis.” “Wm. defendants,

The earnest contention of the disclosed by answer, was that was not the owner of as aforesaid the trustee Whitson— by goods assigned that that was to Robert Winkleman and not assignment We cannot assent to this plaintiff. proposition. instrument, consideration, as stated was “paid by Winkleman, Robert for the and it is agent,” clearly indicated terms of the deed the title to the was to be the Jos. M. AVoolenCom- put thereby Hayes so far as the it. trustee could transfer one pany, Only needed, think, other was as we to make the thing plaintiff’s title on that and that was that the defend- complete day, ants’ claims for out of the stock should be exemptions And thi's was adjusted. done contract heretofore set out, the admit, execution of which the defendants which “sell, did transfer and sot all over their personal thereto” which had property exemptions rights reserved under their to Whitson. That con- assignment tract was made the defendants with the plaintiff through its Robert AVinkleman. There is about it to agent, nothing show that Winkleman had or lot individually any part it. It' it that he was plainly expressed acting All the circumstances showed surrounding that the defendants so him and so contracted regarded TERM, C.]

WOOLEX McKlXXOX. (-OMPAXY V. liim. The fact that lie Robert Winkle- merely signed ” man to the has no instrument importance. [Seal] defendants executed that contract and thereby distinctly the as the owner of the recognized plaintiff goods to hold or them as the agreed agents plaintiff’s consignees to the terms of that according writing. n His err, therefore, Honor did not when he told the jury to-wit, issue, to find the first the fact involved in the second That issue of the in its favor. plaintiff’s ownership goods, the fact, to-wit, involved to another right plaintiff’s of the possession goods. the defend- of the contract

According provisions ants were to have of the right possession goods, business, of them in usual course of dispose regular until that 1, 1893. This shit was before January brought had time Had their the defendants forfeited expired. right to hold and think use the under We that contract? so. Their con- of the right possession ditioned duties their continued of those upon performance which that the contract plaintiff they stipulated would do. is con- Such the reasonable and proper struction of that bo a constant There was to agreement-. of the The business was recognition plaintiff’s ownership. to be conducted in its that name. They expressly agreed would all correct account of “keep receipts ” and furnish to the time owners expenditures any demanded a correct account and turn over to the of affairs of the first that all funds came party part, plaintiff, Now, answer, their hands. the averments of inde- evidence, are themselves sufficient to entitle pendent any to assert a plaintiff right-of possession goods. that In answer the defendants that distinctly deny is or was the was, owner of the This plaintiff goods. course, ato of all equivalent repudiation obligations IN THE SUPREME COURT. r. No out of contract. plaintiff growing proof

a demand for an account and a refusal was necessary. C., v. 95 N. 358. The Logan, title been Wiley having shown to be in stated, as above his Honor well have held that of the defend- might declarations ants in their answer showed that had a right to take Thus it was possession properly goods. determined that the was not the owner but only was entitled to the immediate possession *7 described in the complaint.

doWe not deem it in the we take of the view necessary, case, to consider seriatim the to the admissions of objection evidence his so far as Honor these charge issues, for, relate to first and as we second exceptions said, have in those issues should answered have been in affirmative and the upon put pleadings writings evidence parties. n The “case” on the contains the fol- defendants’ appeal statement: lowing record,

“The as returned verdict jury appears moved, when the defendants that an issue be writing, submitted taken to ascertain or an account be jury $750, what credits the defendants are entitled to upon to balance due to and that be the plaintiff, permitted them, the same if to could be re-delivered pay goods if that could not be re-delivered to them be the difference between to to them adjudged pay ascertained, and due, the amount after credits so deducting written as The the value of settled the jury. goods this case to the motion the record is to as go Court, This motion was refused by Court. Supreme The the' defendants judgment appearing excepted. ex- rendered, the record was then and the defendants cepted.” TERM, 1894. Cl] (369 v.

An account should have been ordered. The allegations itself showed what was in effect an agree ment sell to by plaintiff the defendants for the goods sum of is here inter It controversy $750. paries. not matters whether the be called a aor writing mortgage contract of sale. The effect itof was to legal the title put to defendants’ plaintiff subject right for them and thus title to them. pay acquire The rights be in this parties may action. adjusted Austin v. Secrest, C., 91 N. In such taken accounting this action should be $794.25, valued at as found and it should also jury, be with such sum charged ' it has collected. Error.

PLAINTIFF’S APPEAL IN SAME CASE. J.: After careful examination of the defend- Bukwell, find ants’ answer we no which, as it allegations upon appears us, the fourth and fifth issues can be properly supported. that there is Throughout denial pleading persistent *8 there was contract between them and any It plaintiff. measure, indeed, would be hard to allow the mulct in be defendants’ instance for damages not doing what the defendants themselves insisted the not bound to do. These two issues and the thereon findings In should be stricken out. this there is error. The appeal in this cause will be set aside and an judgment order for an account will be made. notes choses action, debt, and other evidences of with all the together other described in the deed of executed assignment 1892, to me on the 6th D. R. McKinnon day April, Petrie, and Ii. city county Carolina, Buncombe and State of North 47, chattels now the store-house No. on South being