Barbee v. . Scoggins , 121 N.C. 135 ( 1897 )

The plaintiff, on 6 March, 1896, began the action to recover judgment against the defendant for an amount due under an agreement contained in a paper-writing and to recover possession of the (137) personal property therein described. On the same day, to-wit, 6 March, 1896, by an order issuing from the Clerk of the Superior Court of Durham County, the sheriff of said County seized the property described in the complaint and in the agreement above referred to, and after retaining it for three days in order that the defendant, if he saw fit, might replevy as allowed by law, turned over the property to the plaintiff. His Honor submitted the following issues:

1. Is the plaintiff the owner and entitled to the possession of the property described in complaint?

2. What damage, if any, is the defendant entitled to recover of the plaintiff?

3. In what sum, if any, is the defendant indebted to the plaintiff?

At the close of the evidence, after argument by the counsel for the plaintiff and defendant, his Honor directed the jury to answer (141) the first issue "No," to which instruction the plaintiff excepted. His Honor also instructed the jury that the answer to the second issue was the value of the goods at the date they were seized by the plaintiff, and that the answer to the third issue was the full amount of $730 stated in the agreement, with interest thereon under the terms of the agreement, subject to the credits of the weekly payments, which amount to $261, of the $100 payment, and the $94, the amount of the deposit in the clerk's office.

To his Honor's instruction as to the measure of damages the plaintiff excepted.

The jury answered the second issue "$552.40" and the third "$290.60," and his Honor rendered judgment that the plaintiff recover nothing and that the defendant recover of the plaintiff $304.40, with interest from 20 June, 1897, and costs. From this judgment plaintiff appealed, assigning as error the instructions to the jury. The appellee's motion to dismiss for failure to print part of "case on appeal" must be disallowed. As the rule requires the "case on appeal" to be printed, when other matter is referred to and ordered to be made a part of the case on appeal, the Court will not take up time debating whether such "exhibit" is material or not; the order making it a part of the case being conclusive. Barnes v. Crawford, 119 N.C. 127;Fleming v. McPhail, post, 183. Here a receipt which is embraced in the "case on appeal" merely recites that it is in accordance with (142) terms embraced in the answer, but does not purport to make the answer a "part of case on appeal." The practice as settled by the rules of Court is, that those parts of the record which are required to be printed by Rule 28 (119 N.C. 940), i. e., the judgment, case on appeal, exceptions, and issues, are per se material, and if they are not printed in full, Rule 30 requires that the appeal shall be dismissed. But the pleadings are not so required to be printed (except when the case comes up on a demurrer) unless material, and if they are material and not printed, the Court will not dismiss, but simply order the additional printing. Rule 32.

Rules 28, 30 and 32 set out all this so plainly (119 N.C. 940, 941 and 942) that no time ought to be lost hereafter in discussing them.

It is true that, in the absence of a stipulation to the contrary, a mortgage to secure a debt payable in installments cannot be foreclosed till default in the last payment. Brame v. Swain, 111 N.C. 540; Harshaw v.McKesson, 66 N.C. 266. But here the mortgage expressly states that upon default in any installments all were to become due, and the mortgagee could "proceed to collect under the powers herein given." McIver v. Smith,118 N.C. 72; 2 Cobbey Mortgages, sec. 852. The exercise of the power to declare the deferred payments due was held optional, and if not exercised, did not put the statute to running (Capehart v. Dettrick, 91 N.C. 344;Barbour v. White, 37 Illinois, 164; Chapin v. Whitsett, 3 Colorado, 315); but no question of that kind arises, as by taking out the proceedings herein the plaintiff exercised his option. 8 Am. and Eng. Enc., 194. The mortgagor being in default on some of his installments, the mortgagee was within his rights when he elected to take the goods in possession; for the $100 derived from the sale of cattle, it was stipulated, were not to be credited on the weekly, installments. But there is another stipulation, that upon the payment of $350 (143) upon the weekly installments, the mortgage should be released upon the stock of goods, leaving it in force only as to the realty. The mortgagor tendered the plaintiff and paid into the clerk's office (where it has continuously remained), for his benefit, on 3 April, the sum of $94, which, added to previous payments (exclusive of the aforesaid $100 from sale of cattle), made the full sum of $350. Eo instanti, the mortgage on the personalty was released (Shattuck v. Cole, 91 Mich. 580), and, the costs to that date having also been paid into the clerk's office at the same time, the plaintiff should have discontinued his action.

Even if the balance necessary to release the mortgage on the personalty had not been paid in before the attempted sale on 13 April, that sale was invalid. Alston v. Morphew, 113 N.C. 460, citing Blount v. Mitchell, 1 N.C. The goods were not in plain view, but were in a store, 100 to 150 yards off from the place of sale, and, moreover, they were sold in a lump, which was calculated to make them bring much less than their value. The mortgagor is in the power of the mortgagee, and the courts require that such sales, like those made under execution, shall be made with such reasonable care as shall produce the best results. McNeely v. Hart, 30 N.C. 492; Ainsworthv. Greenlee, 7 N.C. 470.

Upon the first issue, the burden being upon the plaintiff, and there being no evidence tending to support his contention, the court properly directed the verdict thereon to be rendered against him. Spruill v. Ins.Co., 120 N.C. 141; S. v. Riley, 113 N.C. 648. The measure of damages upon the second issue was strictly the value of the goods on 10 March, when the defendant first tendered the balance necessary under the terms of the mortgage to release it as to the goods seized, and plaintiff refused to release them. The plaintiff lawfully caused them to be seized on 6 March, when there was an installment due, but in (144) the absence of any evidence tending to show a depreciation in their market value during the four days between the lawful seizure and the unlawful refusal to return, it was harmless error to charge that the value should be assessed as of the date of seizure. We fail to see how the plaintiff can object to the "allowance of interest" on the third issue.

No error.

Cited: Gore v. Davis, 124 N.C. 235; Cone v. Hyatt, 132 N.C. 816;Hinton v. Jones, 136 N.C. 56; Phillips v. Hyatt, 167 N.C. 574.