Lance v. Butler.

*422 Clark, C. J. Tbe real controversy is upon the second exception, that the contract above set out, by which the plaintiff consigned the stock of goods, etc., to Hunter & Lance, was a conditional sale, and therefore invalid as to the defendant under The Code, section 1215, because not registered. In a conditional sale the transfer of title to purchaser or retention of it by him depends upon the performance of some condition. 6 Am. & Eng. Ency. (2 Ed.), 437. Here the title to the goods was not passed to Hunter & Lance, but they were merely agents to sell the goods, remitting proceeds to-plaintiff. They were to keep the goods separate and apart so as to be identified and the title was to remain in the plaintiff. After remitting $1,062.52 of the proceeds, as received, to plaintiff, half of the balance of the proceeds were to be retained by Hunter & Lance as their compensation for selling and disposing of the goods. This was a mere agency, not a conditional sale, and registration of the instrument was not necessary. In Drill Co. v. Allison, 94 N. C., 548, an agreement was held an agency to sell, though less clearly so than in this case, and though it was expressly styled therein a conditional sale. It is clear, in this case, that the goods were not sold to Hunter & Lance, but they were to sell them to the public as agents for the plaintiff, and after collecting and sending the plaintiff, out of sales, the amount he had paid for the goods ($1,062.52), one-half of the balance of sales were to be retained by the agents as their compensation for selling. The proceeds of sales were a trust fund in the hands of Hunter & Lance, except as to the commissions for selling. Brewery Co. v. Merratt (Mich.), 9 L. R. A., 270; 6 Am. & Eng. Ency. (2 Ed.), 450. In Kootz v. Tuvian, 118 N. C., 393, it is held that while an agreement to share profits, as such, is one of the tests of a partnership, an agreement to receive part of the profits for his services and attention, as a means only of ascertain *423 ing tbe compensation, does not create a partnership—citing to that effect, Mauney v. Coit, 86 N. C., 463; Fertilizer Co. v. Reams, 105 N. C., 296. But even if this bad been a partnership between the plaintiff and Hunter & Lance, Hunter had no power, without the consent of the other partners, to mortgage the firm property for his own debt (Hartness v. Wallace, 106 N. C., 421), and it can make no difference whether the mortgagee knew that it was partnership assets or not. Rogers v. Batchelor, 12 Pet., 229, and citations of that case collected in 3 Rose’s Notes, 728. The defendant properly asked that the third issue should be, “Was the plaintiff damaged by said sale; if so, how much?” Had it been submitted in that form, the jury in their discretion could have allowed interest from the date of the conversion. Stephens v. Koonce, 103 N. C., 266. In the form actually submitted, “What was the value of the goods sold by the defendant under his mortgage?” the jury responded “$300.” Npon this, it was error to allow interest except from the date of the judgment. The Code, section 530. Besides, the date of the conversion, “February 6, 1895,” as stated in the judgment, is not found by the verdict. This error, however, does not call for a new trial, but the judgment will be reformed so that the $300 shall bear interest only from the date of the judgment. The error in the form of the issue not having been prejudicial to the defendant, his exception cannot be sustained. It is not merely error, but error in a material matter, and shown to be prejudicial to the appellant, which can justify the order for a new trial. The defendant further insists that as the goods were not kept separate, but were mixed by Hunter & Lance with their own, the plaintiff cannot recover. But, as is said in Wells v. Batts, 112 N. C., 291, 34 Am. St. Rep., 506, “the party who occasions, or through whose fault or neglect occurs the *424 wrongful mixture must bear tbe whole loss.” By tbe mixing, tbe title of tbe plaintiff attached to tbe whole of tbe stock of Hunter & Lance until tbe value of tbe plaintiff’s goods was returned to him or properly accounted for, and tbe defendant by bis chattel mortgage could obtain no better title than bis mortgagor possessed. It is further contended that tbe Court erred in unduly stressing tbe testimony of one particular witness, but tbe witness’ name is mentioned in tbe charge but once, and that upon tbe first issue, “Were tbe goods consigned to Hunter & Lance ?” and that issue, tbe defendant admits, should be and was answered as a proposition of law under tbe instruction of tbe Court upon its construction of tbe written agreement. Tbe exceptions in tbe record, other than those above stated, are not set out in tbe brief, and are without merit. The judgment will be modified by allowing interest only from tbe trial. Modified and Affirmed.