Turnage Co. v. Morton

Bobbitt, J. Under tbe stipulations and findings of fact stated above, nothing else appearing, tbe plaintiff was entitled to judgment. White v. Boyd, 124 N.C. 177, 32 S.E. 495. In White v. Boyd, supra, Crowder, a cropper on the land of plaintiff White, took tbe tobacco to tbe sales warehouse of tbe defendants where it was sold by them at public auction. Tbe sale to tbe highest bidder was completed and tbe sale price paid to Crowder, less a commission to tbe defendants as compensation for tbeir services. Crowder bad given to tbe plaintiff Green a mortgage on tbe crop. In addition, tbe plaintiff White, owner of tbe farm and landlord of Crowder, bad mortgaged tbe crop to tbe plaintiff Green. Plaintiffs’ action to recover tbe amount tbe defendants received for tbe tobacco upon tbeir sale thereof at tbe instance of Crowder was nonsuited, apparently upon tbe theory that tbe defendants were mere intermediaries and did not occupy tbe status of agent for Crowder. This Court reversed, tbe explicit bolding, being that tbe defendants sold tbe tobacco as agents for Crowder; that there was a wrongful conversion by tbe defendants; and that tbe plaintiffs could waive tbe tort and sue both Crowder and tbe defendants on tbe basis of money wrongfully bad and received. The facts alleged in tbe original answer are insufficient in law to constitute a defense to plaintiff’s action. It was so held in Credit Co. v. *98 Satterfield, 218 N.C. 298, 10 S.E. 2d 914, where Seawall, J., says: “The particular objection based on defendants’ immunity as public warehouse-men has been decided adversely to them by this Court in White v. Boyd, 124 N.C. 177, 32 S.E. 387. See, also, Burwell v. Cooperative Co., 172 N.C. 79, 89 S.E. 1064; Nowell v. Basnight, 185 N.C. 142, 116 S.E. 87; Roebuck v. Short, 196 N.C. 61, 144 S.E. 515; Furniture Co. v. Clark, 191 N.C. 369, 131 S.E. 567.” The further defense alleged in the amendment to answer quoted above affords the basis for the position taken by the defendant upon this appeal. It is unnecessary to pass upon whether the facts as alleged are sufficient to constitute a waiver or estoppel, for, in our view, the findings of fact relative to this subject are insufficient to show that the plaintiff waived its liens or is estopped to assert them. We look to the findings of fact. It has been held repeatedly that an exceptive assignment of error challenging the correctness of the judgment, where jury trial is waived under GLS. 1-184, presents one question, that is, whether facts found are sufficient to support the judgment. Swink v. Horn, 226 N.C. 713, 40 S.E. 2d 353, and cases cited. The only finding of fact relative to the affirmative defense of waiver or estoppel is No. 12, viz. : “12. That the tobacco crop remained in possession of the landlord, Mrs. Pruitt. The plaintiff expected the tobacco to be sold and to have its Agricultural Lien paid from the proceeds. Plaintiff made no objection to the sale of the tobacco by Mrs. Pruitt and Hopkins; however, there was no agreement that Hopkins and Mrs. Pruitt should sell the tobacco. (Emphasis added.) “Where there is an Agricultural Lien securing advances, it is the customary procedure for the landlord and tenant to retain possession of the crops and to sell the tobacco at the various tobacco markets in the area. Plaintiff did not know where or when landlord or mortgagor would be selling the tobacco. After the tobacco market opened, and before the sale in question on 12 September 1952, the plaintiff knew that a quantity of the mortgaged tobacco had been sold at the warehouse of the defendant on a certain date, to-wit: 29 August 1952.” The trial judge held that these facts do not constitute a waiver or an estoppel. We agree. At most, they are evidential circumstances bearing upon the ultimate issue of fact, viz.: Did the plaintiff constitute Hopkins his agent to sell the tobacco for their joint benefit and account for the amount due him out of the proceeds of sale? The rule to be applied is analogous to that applied in respect of a landlord’s lien in Hall v. Odom, ante, 66, decided at this term. Waiver embraces the idea that the lien-holder by agreement, express or implied, has waived his lien. Estoppel embraces the idea that by his acts and conduct the lienholder is precluded *99 from asserting bis lien. Where different inferences can be drawn from the evidence the ultimate issue is for the jury or, when jury trial is waived, for the trial judge. Where there is a valid recorded lien, as here, waiver or estoppel is an affirmative defense; and before the defendant can prevail he must prove facts sufficient to establish the ultimate issue raised by his plea. An affirmative finding of fact in his favor is required. No such finding of fact was made. The facts as found are insufficient in law to constitute a waiver or an estoppel. The failure of the defendant to establish the factual basis for such alleged affirmative defense necessitates decision affirming the judgment. Affirmed.