64 S.E. 887 | N.C. | 1909
The record discloses the following facts, in regard to which there is no controversy: One D. S. Russell, was on and prior to 21 September, 1900, the owner of one Junior Westinghouse engine, No. 629, two band wheels and one 60-horse-power boiler, with the fixtures attached thereto. On or about said date he entering into a contract with the defendants Machin and others, trading under the firm name and style of the Ottalay Novelty Company, to sell said company said engine, boiler and machinery at the price of $450, cash, which amount was to be paid to the plaintiff, the Asheville Supply and Foundry Company, for the benefit and on account of said Russell. Pursuant to the terms of the contract the engine and boiler were turned over to the purchasing company to enable it to make certain tests of the boiler. The defendant company failed to comply with its contract or to return the property. The Asheville Supply and Foundry Company and Russell, at the November Term, 1900, brought this action for the purpose of recovering possession of the property. At the institution of the action plaintiffs obtained an order for the immediate delivery of the property, and defendant company executed an undertaking with O. D. Revell as surety for its forthcoming, if the final judgment so directed. At the September Term, 1901, the defendants having failed to file an answer, judgment was rendered by default against defendants and for plaintiffs, adjudging them to be the owners of the property and entitled to the immediate possession thereof. The cause was retained for the purpose of assessing damages for the detention and deterioration. It was further adjudged that, if possession could not, for any reason, be had, the plaintiffs recover of the surety on the undertaking the sum of $900, to be discharged by the payment of such amount as should be assessed by the jury as the value of the property and damages. The plaintiffs did not immediately take out execution for the delivery of the property. The defendants Machin and Atkins delivered it to the Asheville Woodworking Company, a corporation in which they and said O. D. Revell were stockholders. This corporation was adjudged bankrupt, and the property went into the possession of Mr. (740) Whitson, trustee. On 1 September, 1902, the said trustee sold all of the property of the Asheville Woodworking Company, including *607 the engine and boiler in controversy, at public auction, when it was purchased by W. H. Westall, who took immediate possession. On 20 January, 1903, an execution was issued, at the suggestion of Revell, upon the judgment of the Asheville Supply and Foundry Company, to the Sheriff of Buncombe County, directing him to take possession of the property and deliver it to the plaintiffs. The sheriff, J. H. Reed, took the property into his possession, whereupon W. H. Westall brought an action against the said sheriff, claiming that he was the owner and demanding possession, and took possession thereof. Defendant Reed filed an answer denying that the plaintiff Westall was the owner of the property. On 28 September, 1904, the defendants in the original action, together with O. D. Revell, the surety on the undertaking, filed a supplemental answer in which they alleged the facts herein set forth, and further alleged: "That the defendants are informed and believe that, at said sale of the property of the Asheville Woodworking Company by said trustee in bankruptcy, the plaintiffs in said action, in person and by attorney, appeared at said sale, and, a question being raised as to whether or not the said sale by the said trustee in bankruptcy would pass a good title to the property described in the complaint herein, the said plaintiffs and their said attorney, publicly and in the hearing of those persons then and there assembled, announced and declared, in substance, that the plaintiffs in this cause had no claim to the property described in the complaint herein and did not own the same, and did not expect to contest the title thereto, and the purchaser at said bankrupt sale would acquire a good title to said property, freed and discharged from all other claims of the plaintiffs in this action. And the defendants further say that they are advised and believe that the said Westall; relying upon the said statements of the plaintiffs and their attorney, bid off the said property at said bankrupt sale in good faith, believing that he would get a good title thereto, and that the said W. H. Westall now claims the title to said property by virtue of said conduct of the plaintiffs at said sale. And these defendants further say that they are advised, informed and believe that the said plaintiffs, (741) by the reason of their conduct hereinbefore set forth, are estopped to recover the possession of said property, or the value thereof, from these defendants, since they have, by their conduct, put it beyond the power of the defendants or O. D. Revell, their surety, to deliver the possession of said property to said plaintiffs. And the defendants further say that they are advised, informed and believe that said W. H. Westall is a necessary party to this action. The defendants further aver that, by reason of the acts, conduct and disclaimer of title by the plaintiffs, as recited in paragraph 3 above, and their refusal to take possession of said property, O. D. Revell, the surety on the defendant's *608 replevin bond, is forever released and discharged from all liability on said bond."
An order was made making Westall a party to the original action. The two cases were consolidated and brought to trial. The jury found, upon issues submitted to them —
"First. That at the time of the sale of the property in controversy by Whitson, trustee in bankruptcy, it belonged to the plaintiffs Asheville Supply and Foundry Company and D. S. Russell.
"Second. That Whitson, trustee, at the time of the sale had no title to the property.
"Third. That D. S. Russell had been paid for his interest in the property by the Asheville Supply and Foundry Company."
The following additional issues, in regard to which there was controversy, were submitted to the jury:
5. "Were the acts and conduct of the plaintiffs in said original claim and delivery action, or either of them, on the day of the sale by Whitson, trustee, such as to estop him or it from claiming any further title or interest in the boiler and engine sold by Whitson, trustee, at said sale?
6. "Did plaintiffs in said original claim and delivery action, or either of them, by his or its conduct or acts on the day of the sale by Whitson, trustee in bankruptcy, release the surety, O. D. Revell, from further liability on the replevin bond executed by said Revell on 23 September, 1900?
7. "Did W. H. Westall acquire good title to the said property by his purchase at the sale by Whitson, trustee in bankruptcy, by reason (742) of the waiver or estoppel of said plaintiffs in said original claim and delivery action, or either of them, to thereafter claim said property, to wit, boiler and engine?"
At the close of all of the evidence "Mr. Bourne moves the court for judgment in behalf of the Asheville Supply and Foundry Company and D. S. Russell against Machin and Atkins and the surety on their bond in claim and delivery for the sum of $450, with interest thereon from the date of the seizure of the property." Motion overruled and exception allowed.
This motion was based upon all of the evidence introduced in the case and the record of the consolidated cases. The court instructed the jury that if they believed the evidence they should answer the fifth issue "Yes." The court answered the sixth and the seventh issues "Yes," upon the coming in of the verdict, to all of which no exception was taken. The court rendered judgment upon the verdict against the plaintiffs, except as to a small amount for damage not material to this appeal.
Plaintiff, the Asheville Supply and Foundry Company, excepted and appealed. *609
The trial of this case took quite a wide range and the record comes to this Court in a somewhat confused condition. Much of the testimony and a number of the exceptions are rendered immaterial by the elimination of Russell, one of the original plaintiffs, by the verdict of the jury in finding that his interest in the property passed to his coplaintiff the Asheville Supply and Foundry Company. The jury having found that the title to the property was, prior to the sale by Whitson, trustee, in the Asheville Supply and Foundry Company, the sole question is, whether this corporation has lost or been deprived of its title by what occurred at the time of the sale by Whitson, trustee. There is no suggestion that it has sold the property or, by any contract, parted with its title. It is, however, alleged in the supplemental answer and testimony introduced to sustain the contention that it has lost its title by way of estoppel (743)in pais. His Honor, being of the opinion that if the evidence bearing upon this issue was believed by the jury they should answer it in the affirmative, so instructed them. The contention of the plaintiff corporation to the contrary, while not presented by an exception to the charge, is presented by exceptions to the admission of the evidence and by motion for judgment upon the whole of the evidence. It would have been better practice to have excepted to the instruction on the fifth issue, but we think its other exceptions fairly present its contentions. The answers to the sixth and seventh issues are, as his Honor held, dependent upon the correctness of the instruction upon the fifth, hence the question upon which the decision of the appeal must rest is, whether his Honor correctly admitted and interpreted the evidence relevant to the alleged estoppel. It is unquestionably true, and quite elementary, that title to property may pass, or at least the true owner may be precluded from asserting his title, as against a purchaser from one having no title, by conduct which comes within the definition of an estoppelin pais. In Mason v. Williams,
Thus considered, we do not find any evidence of authority in Woody to attend the sale by Whitson, trustee, and, by his acts and declarations, *612 estop the plaintiff corporation from asserting title to its property or release the surety from his liability on the judgment. The plaintiff had successfully prosecuted its claim to the property, established its title in an action in which defendants made no defense. It filed no answer to the complaint. For reasons apparent on the face of the record the cause was retained for final judgment against the bondsman. The amount of his liability could not be fixed otherwise than by a verdict of the jury. By the wrongful conduct of defendants Machin and Atkins, the property was put in the possession of a corporation of which they and Revell, the surety, were the principal stockholders and, in this way, passed into the possession of Whitson, trustee in bankruptcy. He undertook to sell it, together with the other property of the bankrupt corporation. It seems that, some question having arisen between the attorneys present at the sale, Mr. Bourne stated that his clients did not claim the property, but looked to the bond for its value. This was not a statement of any fact which bound the client, but rather an opinion of Mr. Bourne as its attorney. The fact that the property belonged to the plaintiff corporation was known, and constituted the basis of the conversation. No fact was concealed or misrepresented. Every person buying at a bankrupt sale, as at one made by the sheriff, must take notice that nothing is proposed to be sold except the interest of the bankrupt or the defendant in the execution. We do not think that the plaintiff corporation has, by any officer empowered to act for it, (747) either authorized Whitson, trustee, to sell its property, or done anything which makes it fraudulent to assert its title against Westall. This is the test of defendant's claim, as laid down in Masonv. Williams, supra.
In the view of the record most favorable to defendants, the jury should have been permitted to pass, not only upon the testimony, but make such reasonable inferences as should be drawn therefrom. In Mason v. Williams,supra, although there was an agreed state of facts, this Court held that the ultimate decision of the existence of the constituent elements of an estoppel should have been submitted to the jury. This view of the case would work a new trial. It is evident, however, that with the testimony in regard to Mr. Bourne's and Mr. Woody's declarations excluded, as we think they should be, there would be nothing to go to the jury upon the fifth issue. The motion for judgment made by plaintiff should have been allowed.
The cause will be remanded to the Superior Court of Buncombe, with direction to set aside the verdict on the fifth, sixth and seventh issues and render judgment upon the verdict on the other issues, fixing the value and damages in such way as the parties may agree, or may be in accordance with the course and practice of the court. *613
Defendants moved in this Court that appellant be not allowed to tax defendants with the cost of sending up and printing the testimony. It appears from the record that the case on appeal was not sent to his Honor until 28 April, 1909, the cause having been tried at the March Term, 1907. His Honor made the following statement at the end of the case settled by him:
"This is the case on appeal settled by me at Greenville, N.C. on 28 April, 1909. I am now inclined to the opinion that more of the evidence than is necessary is in the case, but the case was tried more than two years ago. The appellants have sent down the cases on appeal, and the record, to me today. While I am engaged in Pitt Court, it is not possible for me now, in the time allowed on the appeal to go up for the approaching term of the Supreme Court, to eliminate what may be the unnecessary parts of the evidence, which appears to be the only objection to this statement. It is better to send it up as it is (748) or to avail myself of the right to refuse to settle the case, because of laches in the appellant, and I elect to pursue the former course."
It is manifest that his Honor could not, after two years' delay, undertake to do more. It was unfortunate that the settlement of the case was delayed so long; there were valid reasons for the delay. It would be impossible for us to separate such part of the evidence as was unnecessary from that which was so. It may not be improper to suggest that, while the stenographer properly took notes of all that occurred upon the trial, such parts as have no relevancy to the exceptions should be eliminated from the record on appeal.
Error.
Cited: Lynch v. Johnson,