Volume 185 — North Carolina Reports

<p>Appeal by defendant from Horton, J., at November Term, 1922, of Beetle.</p> <p>Tbe action is to recover damages for wrongfully negotiating by endorsement, and to a bolder in due course certain notes of plaintiff in breach of defendant’s agreement to bold same until a binding contract should have been made by the parties. (2) For false and fraudulent representations on part of defendant’s agent in charge of the matter, by which plaintiff was induced to sign and deliver the notes in such form that defendant was enabled to negotiate the notes to a holder in due course to plaintiff’s damage.</p> <p>In either aspect of the matter there was denial of liability on part of defendant. On the trial there were facts in evidence tending to show that on II June, 1920, plaintiff signed and delivered to defendant’s •agent three promissory notes, aggregating $11,410, due 1 June, 1921, and on each note there appeared over plaintiff’s signature an endorsement in terms as follows: “This is to certify that this note is given for a cash consideration, therefore it will be satisfactory to me for the holder to cash this note before it is due, and I will pay in full at maturity to the purchaser.”</p> <p>There was evidence on part of plaintiff to the effect that these notes were to be placed for safekeeping in the Bank of Colerain, and it was understood and agreed that if plaintiff sold a certain farm in Chowan County at a suggested price before the maturity of the notes, he would so inform defendant and take up the notes, paying principal and interest, and receive therefor 161 shares of stock in defendant company, and further, that should plaintiff fail to sell said farm as above stated, the notes were to be returned and all negotiations abandoned. That instead of depositing said notes in accordance with the above understanding and agreement, defendant’s agent wrongfully and fraudulently, and with intent to cheat plaintiff, negotiated said notes to the Bank of Colerain, which became an innocent purchaser for value, and plaintiff was forced to pay said notes at maturity, though he had not been able to sell said farm as contemplated, and the contingency on which the notes were to take effect as between the original parties had not occurred. See statement of facts in former appeal, reported in 183 N. C., 228.</p> <p>There was further evidence tending to show false and fraudulent statements and assurances of defendant’s agent as to the value of the stock, and there were also allegations with supporting evidence on the part of plaintiff to the effect that at the time said notes were obtained defendant’s agent had no purpose of abiding by the agreement made, but same was entered into with the fraudulent purpose and design to obtain the notes and at once sell and dispose of same, and thereby cheat and defraud plaintiff, which they did to his pecuniary damage.</p> <p>Defendant maintained that tbe contract and agreement was fully shown on face of the written papers, and offered evidence tending to show that the stock was of real value, and that no imposition had been made on plaintiff.</p> <p>On a former appeal in the cause, reported in 183 N. 0., 228, plaintiff having obtained a judgment as for mere breach of the agreement not to presently negotiate the notes, the judgment was set aside and a new trial ordered on the ground that in that aspect of the matter it was not open to plaintiff, by parole evidence, to contradict the express written agreement appearing on the back of the notes. The opinion having been certified down, in deference thereto the case at the present trial was submitted to the jury on the issue of fraud, and verdict was rendered, as follows:</p> <p>“1. Did the defendant fraudulently and wrongfully induce plaintiff to execute the notes, as alleged, and by such fraudulent means obtain possession of the same and fraudulently and wrongfully sell and dispose of same and convert the proceeds thereof to its own use, as alleged in the complaint? Answer: ‘Yes.’</p> <p>“2. If so, what damage has plaintiff sustained, and in what sum is defendant indebted to plaintiff by reason thereof? Answer: ‘$11,410, with interest from 1 June, 1920.’ ”</p> <p>Judgment for plaintiff, and defendant excepted and appealed, assigning errors.</p>

Appeal by plaintiff from Calvert, J., at August Term, 1922, of Pitt. This is an action by the plaintiff for injuries sustained by him in the course of his employment. The plaintiff was the agent of the defendant company at Oak City, N. 0., on its line between Parmele and Weldon. His duties required him to sell tickets, receive and deliver freight, and handle baggage.

<p>Appeal by defendant from Alien, J., at October Term, 1922, of WayNE.</p> <p>Civil action to determine tbe ownership of $700 in tbe bands of tbe clerk of tbe Superior Court of "Wayne County.</p> <p>From a judgment in favor of plaintiff, tbe defendant, Annie "Warren, appealed.</p>

<p>Appeal by plaintiff from Allen, J., at November Term, 1922, of WayNe.</p> <p>Civil action, brought by a landlord against bis tenant, to recover rents for the year 1920. At the institution of the action, there was a bale of cotton seized by the plaintiff under claim and delivery and replevied by the defendant.</p> <p>The defendant set up a counterclaim, alleging that the plaintiff had failed to furnish him funds with which to buy fertilizers, seed beans, etc., as he had agreed to do, and in consequence of which his crops were greatly diminished, and he was damaged in a large sum.</p> <p>The defendant was allowed to give the following testimony over objection of plaintiff:</p> <p>“Q. If the plaintiff had furnished you sufficient fertilizer and seed beans to have planted the entire crop, how many bushels of beans would you have realized therefrom ? A. About 60 bushels to the acre, or about 900 bushels, as I rented about 15 acres from Mr. Gulley.</p> <p>“Q. If the plaintiff had furnished you fertilizer, how many bales of cotton would you have made? A. I would have made eight or nine bales of cotton.”</p> <p>The jury returned the following verdict:</p> <p>“1. What amount, if any, is the defendant indebted to the plaintiff, L. D. Gulley ? Answer:</p> <p>“2. Is the plaintiff,. L. D. Gulley, indebted to the defendant, Thomas Eaynor; if so, in what amount?' Answer: ‘The bale of cotton'in controversy.’ ”</p> <p>Judgment was entered dismissing the action at the cost of the plaintiff and he appealed.</p>

PetitioN and motion, beard on appeal from tbe clerk of tbe Superior Court, before Qrady, J., at February Term, 1922, of Chaven.

Appeal by plaintiffs from Lyon, J., at chambers. N. G. Sutton died intestate 3 February, 1919, and this action was for tbe purpose of dividing* bis lands, and also to declare null and void certain deeds in possession of tbe defendant, George E. Sutton, wbicb bad been executed by N. G. Sutton and wife, but wbicb it was alleged bad never been delivered to tbe grantees therein named.

Appeal by plaintiffs from Granmer, J., at chambers in Kenansville, 15 December, 1922, from SampsoN. On 5 July, 1920, tbe plaintiffs, J. E. Fowler and P. F. Stevens, and tbe defendant J. B. Winders conveyed tbe hotel and lot in Clinton to tbe plaintiff F. JL Partrick for tbe sum of $20,000, one-third of wbicb was paid in cash and notes given for tbe deferred payment secured by deed in trust to A. M. Graham, trustee, and duly recorded.

<p>Appeals by Charles E. Dunn from Granmer and Lyon> J J., at August and November Terms, 1922, and January Special Term, 1923, of LeNoib.</p>

<p>Appeal by plaintiffs from JíwrdÁng, J., at September Term, 1922, of Guilford.</p> <p>The plaintiffs brought suit to recover $1,308 as damages for false representation and deceit. They alleged that on 19 July, 1920, the defendant J. I. Palmer was only nineteen years old, but had the appearance of a man of full age, and was emancipated and married; that at that time he was engaged in the business of hauling lumber and falsely represented to them that he was over twenty-one, by means of which he deceived them and induced them to sell him a truck at the price of $3,014.32, to secure which he executed his note and chattel mortgage on the truck. It is admitted that he paid the Hare’s Motors $1,016.91 and the Greensboro Morris Plan $1,006.32, and that under proceedings in claim and delivery the truck was seized and sold by the plaintiffs for $700. The plaintiffs further alleged that of the payments made $1,223.23 was money made by using the truck. The defendant for the purpose of bis motion for judgment did not deny tbat be was a minor, or tbat be made tbe alleged false representation. He moved for judgment upon tb’e pleadings, and Judge Harding beld tbat tbe plaintiffs could not recover either on contract or in tort, and adjudged tbat tbe plaintiffs should take nothing by their action, and tbat tbe defendant should recover of tbe Hare’s Motors $1,016.91 and from tbe Morris Plan Company $1,006.32, with interest on such sums from 1 December, 1920. Tbe plaintiffs excepted and appealed.</p>

Appeal by plaintiff from ShcCw, J., at April Term, 1922, of MadisoN. This was an action to recover the sum of $3,000 on account of the alleged wrongful and negligent failure of defendant’s agent to make delivery of the policy of insurance issued by defendant to plaintiff in accordance with agreement between them. When the application was taken it was stipulated that the premium would be paid on the delivery of the policy.

Appeal by defendant from Finley, J., at December Term, 1922, of RANDOLPH. Civil action for damages, tried upon the following issues: “1. Did the defendant negligently fail to transmit and deliver the telegram from Troy, N. C., as alleged in the complaint? Answer: ‘Yes.’ “2. Did the defendant negligently fail to deliver a service message to the sender, as alleged in the complaint? Answer: ‘Yes.’ “3. What damage, if any, is the plaintiff entitled to recover of the defendant?

Appeal by petitioners from McElroy, J., at November Term, 1922, •of YADKIN. Petition to revoke letters of administration granted by tbe clerk of the Superior Court of Yadkin County to J. 0. Martin as administrator of the estate of S. W. Martin, deceased. From an order affirming the judgment of the clerk, denying the petition, the petitioners have appealed to this Court.

CONTROVERSY without action, from Henderson, beard by McWlroy, J., at chambers in Hendersonville on 16 March, 1923. The case agreed is as follows: 1.

Appeal by plaintiffs from Lame, J., at August Term, 1922, of BuNcombe. This action was before this Court, on appeal by the defendants from an order denying the petition and motion of defendants for removal to the Federal Court, 180 N. C., 619. Defendants docketed the case in the Federal Court, and subsequently filed a bill in equity in that Court and procured an order enjoining the prosecution of this action in the State Court.

Appeal by defendant from Lane, J., at October Term, 1922, of BuNCOMBE. Civil action for debt and to enforce a mechanic’s lien against defendant’s leasehold estate.

<p>Appeal by plaintiff from McElroy, J., at January Term, 1923, of McDowell.</p> <p>This is an action for damages for tbe negligent killing of plaintiff’s intestate, Arthur Allison. He was working for the defendant tanning company at the time of his death, 29 January, 1920, assisting in the operation of a machine called a “drum dryer,” into which machine liquid extract is poured and in which are two revolving drums heated from within so that in forty minutes from the time the extract is poured into the drum it is as dry as powder. It was in evidence that “from the south side of the machine to the south side of the building there was a space from 10 to 12, possibly 15, feet, and the line shaft was about three feet from the side of the building on the south, and there were windows along the wall on that side as well as on the other side of the building, possibly 6 or 8 on that side.”</p> <p>The witness further testified that between the drum dryer and the window, and about three feet from this wall, was a line shaft which extended through the building; the sections of this shaft were joined by couplings which were about 12 inches in diameter, disk-shaped and flanged, fastened together by bolts extending clear through them; the heads of the bolts were towards the west end of the building and the-threaded ends towards the east. There were five or six bolts which held the disks together. One of these bolts, where the deceased was killed by his clothing being caught by it, was longer than the others and extended out about one-half inch beyond the others and on out past the flange. The end of this bolt was threaded and the threaded end projected about one-half inch beyond the tap. This particular coupling, through which this long bolt was placed, was almost directly in line with the window which had been opened during witness’s absence from the building and in line with the drum dryer. The witness Allison, whom plaintiff’s intestate was assisting, left the building to go over to the superintendent’s office, telling deceased to watch the machine while he was away. The death of deceased occurred while the witness was at the business office. Upon his return he found young Allison dead, or practically so, lying under the line'shaft near this coaling, his clothes being wound around tbe line shaft and along it from the coupling back perhaps 15 to 18 inches, and the window opposite the coupling was open. This witness testified that it was the general custom which had existed as long as he had been working there of going over or under the shaft to raise or lower the windows. It was also in evidence that this was a warm day in January.</p> <p>A. B. Setzer,> another witness, testified in substance to the same facts as the above witness. He testified also to the long established general custom of going over or under the shaft by employees at will, to open or close the windows on the south side of the building. He testified that one set screw in this coupling was longer than the others, and extended out beyond the flange. Other witnesses testified in substance to the same facts, and all state that the custom existed and had existed ever since they had been working at the place, of going beyond the guard rail and line shaft to open the windows. There was no other way of getting to any of these windows to open them.</p> <p>There was a wooden railing a few feet inside of the line shaft, towards the center of the building, but there was no railing between the line shaft and the windows on the south side of the building. Upon the evidence, the court directed a nonsuit, and the plaintiff appealed.</p>

Appeal by plaintiff from Harding, J., at April Term, 1923, of Guilpoed.

<p>1. Fires — Vendor and Purchaser — Contracts to Convey — Owner.</p> <p>Where valuable buildings on real estate for which a bargain of sale is pending are a imineipal and substantial inducement to the contract of purchase, and are destroyed by fire without the fault of either of the parties, the loss will fall upon the one who is the owner of the property at the time of the fire; and if the negotiations at or before that time have resulted in an enforceable and binding agreement to convey, and there is no express stipulation to the contrary, the proposed vendee or holder of such agreement will be regarded as the owner of the property.</p> <p>2. Same — Vendor’s Title.</p> <p>Where the vendor, in a contract to convey lands, the buildings on which are a material and substantial inducement for the transaction, are destroyed by fire, is not at the time of the fire in' a position to convey the property for the lack of title or legal right thereto, or if the contract is incomplete and unenforceable for any reason, the loss will fall on the vendor, and the vendee may elect to proceed no further in the matter.</p> <p>3. Deeds and Conveyances — Contracts to Convey — Description of Land— Sufficiency.</p> <p>A contract to convey an established and known tobacco warehouse, by name, it “being the vendor’s warehouse and plant, meaning thereby the actual warehouse and storehouse, necessary equipment, furniture, fixtures, platform, sidings, tracks,” known as the Farmers Warehouse, New Bern, N. C., etc., etc., is sufficiently described and identified to constitute a binding agreement to sell and convey, and is not unenforceable by reason of indefiniteness of identification, and when necessary and proper and otherwise enforceable, the courts will order a survey to be made in the enforcement of the contract in the vendee’s favor.</p> <p>4. Same — Statute of Frauds — “Signed”—Subscribed.</p> <p>The statute of frauds requiring that contracts for the sale of lands, etc., to be enforceable must be in writing, does not require that the writing must be subscribed by the parties, but only that it be signed, and where the description of the lands appears below their signatures, and it clearly appears that this was intended by the parties as a part of the contract, it comes within the intent and meaning of the statute.</p> <p>5. Deeds and Conveyances — Contracts to Convey — Title—Encumbrances —‘ ‘Owner’ ’ — Specific Pei’fonnance.</p> <p>Where the parties to a contract to convey lands recognize the existence of certain mortgage liens thereon, and with the vendor’s knowledge of the amounts and provision made therefor, agree to the conveyance of the equity of redemption, these encumbrances do not fall within the principle that encumbrances in a substantial sum, unknown to the vendee and indeterminate as to amount, will avoid the contract as to his rights; and where it is made to appear before a court of competent jurisdiction that the encumbrance immaterially exceeds the purchase price, or that full and adequate protection can be afforded, or that the vendee will get tbe title be bas contracted to receive, specific performance will be decreed by tbe Court, with proper provision made for clearing tbe vendee’s title; tbis being especially insistent where tbe vendee bas gone into possession fully aware of tbe encumbrances and bas been exercising over tbe property full control as owner.</p> <p>6. Same — Fires.</p> <p>Tbe owners of a warehouse for tbe sale of leaf tobacco contracted to convey tbe same subject to enumerated liens thereon, with provision that they should not exceed one-balf of tbe value of tbe property to be after-wards ascertained by a designated method, and tbe purchase price finally established was within an inappreciable amount of tbe encumbrances, thereon. Tbe lienors gave assurance that they were' at all' times ready, willing, and able to modify the amounts of their liens, so as to enable tbe vendor to comply with bis contract, with other evidence that tbe vendee would get an unencumbered fee-simple title, which it would have taken except for a delay caused by tbe vendor, and pending these conditions tbe warehouse, etc., was destroyed by fire, without fault on tbe part of tbe parties to tbe contract, while the vendee was in possession, exercising full rights of ownership: Held, tbe contract was enforceable against the vendor, and tbe vendee is regarded as tbe owner upon whom the fire loss must fall.</p>

Civil action, beard May, 1923, on application to restrain defendants from a proposed bond issue for road construction and improvement in said county, before Shaw, J., presiding in tbe courts of tbe Eleventh District.

Appeal by plaintiff from Broch, J., at September Term, 1922, of MONTGOMERY. Civil action for damages, tried upon the following issues: “1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: ‘Yes.’ “2. Did the plaintiff by his own negligence contribute to his injury, as alleged in the answer ? Answer: Wes.’ “3. What damage, if any, is plaintiff entitled to recover of the defendant?

Appeal by defendant from Grady, J., at January Criminal Term, 1923, of Pitt. Indictment for murder. Tbe State did not insist on a conviction of murder in tbe first degree, and “defendant was put on trial for murder in tbe second degree, or manslaughter.” There was conviction of murder in tbe second degree, and from judgment on tbe verdict defendant excepted and appealed, assigning errors.

Appeal by defendant Lewis from Horton, J., at October Term, 1922, of VANCE. Tbe grand jury returned five indictments against tbe defendants.