Mitchell v. . Whitlock , 121 N.C. 166 ( 1897 )

This was a civil action to recover the value of goods sold and delivered by the plaintiff to the defendant. It is admitted that the defendant ordered the goods, as trustee, and that they were so charged to him on the books of the plaintiff. The defendant testified that, before sending any orders as trustee, he showed the plaintiff the written agreement containing the terms of the trust, and explained to him that he would run an account as trustee if he would agree to it, and that the plaintiff did agree to it and took the account with that understanding. (167) This the plaintiff denies, and says that the defendant did not disclose to him for whom he was trustee or any of the conditions of the trust, and that he sold the goods to the defendant upon his individual credit. The jury found for the defendant.

Among other instructions, his Honor charged the jury "That the burden of proof was on the plaintiff to make out his case, and that if the plaintiff had failed to show by a preponderance of evidence that he had sold and delivered the goods to defendant individually, then they must answer the issue in favor of the defendant." In this, we think, there was error. The answer of the defendant was in the nature of a plea of confession and avoidance. Having admitted that he obtained the goods, he assumed the burden, and, nothing else appearing, the plaintiff would be entitled to judgment. A trustee, purchasing goods or incurring any other liability on account of his trust, is personally liable for the payment thereof, unless his liability is limited by an agreement, expressed or implied, with the creditor. The liability of the trust estate is not now before us, the only question being the individual liability of the defendant. It is admitted that the defendant might have limited his liability by such an agreement with the plaintiff as he alleges to have been made, but, having alleged such an agreement, he must prove it. Proof always implies at least a preponderance of testimony.

The decision of this case depends more upon the application of the elementary principles than precedents, but we think its general principles are analogous to those discussed in the two cases of Banking Co. v.Morehead, 116 N.C. 410, 413. For the error in the charge of the court there must be a

New trial.

Cited: McBrayer v. Haynes, 132 N.C. 611; Wright v. R. R., 151 N.C. 535;Embler v. Lumber Co., 167 N.C. 460.

(168)