Sever v. J. McLaughlin & Son

79 N.C. 153 | N.C. | 1878

Eeade, J.

The jury found that the defendants did not buy the goods of the plaintiffs, and therefore if there was no error in His Honor’s charge, we have to take that to be true. We will not stoj>to consider whether there was error in that part of the case, because we are of the opinion that even if the first transaction between Bryce and the defendants did not amount to a purchase upon the part of the defendants, yet the transaction between Reynolds Bros, of Norfolk, and the defendants, made the defendants liable to-the plaintiffs.

Taking the transaction to be as shown by the defendants themselves, the facts are, that Bryce, the agent of the plaintiffs, offered to sell to the defendants fifty rolls of bagging, and that defendants agreed to take the goods on arrival, if the goods and the price suited. That the goods were shipped by the plaintiffs from Boston to Charlotte, to Bryce., who gave the bill of lading and bill of goods to the defendants to receive and examine them, to see if they would take them. That the goods never arrived, but were attached in transitu at Portsmouth on legal process at the instance of Reynolds Bros., creditors of Bryce. That in the suit of Reynolds Bros, against Bryce, in Portsmouth, the defendants intervened and claimed the goods as their property, saying that on or about Oct. 14th, 1873, we ordered of Messrs. Sever & Wild of Boston, through Mr. J. Y. Bryce of Charlotte, fifty rolls of bagging, to be paid for in thirty days. The said bagging was attached by Reynolds Bros, of Norfolk, for a debt of J. Y. Bryce & Co. We certify that J. Y. Bryce & Co. had no interest whatever in the bagging, and that we shipped cotton to pay for the same, but afterwards drew for the value of the cotton, supposing the bagging lost.

(Signed) J. MCLaughlin & SoN.

The foregoing was sworn to by J. F, McLaughlin, one of the defendants, and filed in the said suit in Portsmouth. And the final decree in that suit declares that “on motion of J. McLaughlin & Son, by their attorneys, it is ordered, &c. And thereupon the said petitioners, (McLaughlin & Sou,) by their attorneys, agreeing that for value received they have surrendered to the plaintiffs (Reynolds Bros.) all the interest they have in this suit, the said plaintiffs to take all the interest the said petitioners claim in the property attached, to wit, fifty rolls of bagging in this cause, and it appearing to the Court by the evidence filed in the cause that the said petitioners (McLaughlin & Son) were before the said surrender to the plaintiffs the owners in absolute equity of the said bagging by consent of parties, it is considered by the Court that * * * the proceeds of the sale of the bagging be paid to the plaintiffs, Reynolds Bros.

And then the defendants, McLaughlin & Son, gave to Reynolds Bros, the following writing: Received of * * * Reynolds Bros. * * * $100, for which we surrender to said Reynolds Bros, all the interest we have in the suit of Reynolds Bros, against J. Y: Bryce & Co. now pending in the Court of Hustings, * * * in which suit we had filed a petition claiming the property attached, viz, fifty rolls of bagging, the said Reynolds Bros, to pay all the costs and to take all the interest we claim in said bagging.” Signed by J. McLaughlin & Son.

It is true that J. McLaughlin, the elder who was examined as a witness in the case before us, says that all this was done at the request of J. Y. Bryce, for the purpose of protecting the interests of the plaintiffs, Sever & Wild. But it matters not at whose instance it was done, nor what the defendants say they meant, the meaning of these writings is that the defendants claimed the goods of the plaintiffs while they were in Portsmouth as their own property, and sold them to Reynolds Bros, for a valuable consideration.

They converted them to their own use. His Honor erred in not telling the jury what these writings and proceedings meant, and what was their legal effect, and in leaving it to the jury to find, from the testimony of McLaughlin, what he meant.

One of two things is manifest, — the forwarding the goods from Boston by the plaintiffs, to Charlotte for the defendants, either vested the property in the defendants or left it in the plaintiffs. • If it vested it in the defendants they are liable as purchasers. If it left it in the plaintiffs, then the transaction between the defendants and Reynolds Bros, was a conversion.. And in either event the defendants are liable.

Error.

PER Curiam. Vaiire de novo.