Acme Manufacturing Co. v. McQueen

Stacy, O. J. It will be observed from the verdict that the first and third issues were answered by consent, leaving only the second issue to be determined by the jury. This issue imports liability to arrest. Coble v. Medley, 186 N. C., 479. Early in 1915 the plaintiff entered into a contract with the partnership firm of Tatum & McQueen, under the terms of which the said firm became the agent of the plaintiff for the sale of certain fertilizers. The defendant, Peter McQueen, is the surviving partner of said firm; the other partner, O. J. Tatum, having died prior to the institution of this suit. The action is to recover the amount of certain collections, or choses in action, alleged to have been made or received by the defendant as plaintiff’s agent, and wrongfully converted to his own use. There is no dispute as to the value and amount of the fertilizers shipped under the contract and the payments received by plaintiff from time to time. These are fixed by the first and third issues, which were answered by *313 consent. Tbe real controversy between tbe parties arises over tbe question as to wbat sum or amounts bave been collected or received by tbe defendant as plaintiff’s agent and wrongfully appropriated to bis own use, and from wbat date or dates should said sum or sums bear interest. Tbe contract contains tbe following stipulation: “And all of tbe above-mentioned goods, as well as all notes and accounts and all other proceeds therefrom which may at any time be in your possession, are to be held by you, as our agent, in trust for tbe payment of your note or notes to us.” Tbe defendant having failed to appear and answer tbe complaint filed by tbe plaintiff in this cause, there was a judgment by default and inquiry entered at tbe December Term, 1917, in'which it was adjudged “that tbe plaintiff recover of tbe defendant tbe value of said cboses in action, with interest on tbe same from tbe time of their conversion, and that this cause be retained in order that a writ of inquiry may be set down and beard as to tbe amount of damages sustained by tbe plaintiff by reason of said conversion.” Tbe present appeal is from tbe trial bad upon tbe execution of this writ of inquiry. Plaintiff’s right to recover at least nominal damages, on its cause of action alleging a wrongful conversion of its property, is established by tbe judgment of default and inquiry entered at the December Term, 1917. McLeod v. Nimocks, 122 N. C., 438. Speaking to tbe question, in Blow v. Joyner, 156 N. C., 140, it is said: “Tbe authorities are very generally to tbe effect that where a complaint has been properly filed, showing a right of action for unliquidated damages, a judgment by default and inquiry establishes plaintiff’s right of action, and that be is entitled at least to nominal damages. Osborn v. Leach, 133 N. C., 428; 2 Black on Judgments, sec. 698; 23 Cyc., 752; 6 Enc. Pl. and Pr., 127. And in this State it is further held that such a judgment concludes on all issuable facts properly pleaded, and that evidence in bar of plaintiff’s right of action is not admissible on tbe inquiry as to damages,” citing authorities for tbe position. In dealing with tbe question of damages and tbe burden of proof on tbe second issue, the' trial court instructed tbe jury as follows: “Now, gentlemen of tbe jury, tbe burden is upon tbe plaintiff, Acme Manufacturing Company, to satisfy you by tbe greater weight of tbe evidence as to tbe amount and value of tbe fertilizers actually delivered to defendant under tbe contract; and if tbe plaintiff has offered evidence here which satisfies you by its greater weight that fertilizers were delivered to tbe defendant under this contract, and tbe amount thereof, and you find that fact to be true, then tbe burden would shift to tbe defendant, McQueen, and it would be bis duty to satisfy you by tbe greater weight of tbe evidence as to wbat was done with this particular fer *314 tilizer that be bought from the plaintiff, and wbat loss, if any, be bas sustained by reason of bis failure to make collection. In other words, it would be bis duty to render an account of bis trust. “The defendant bas not offered any evidence in this case at all, and, therefore, I charge you as a matter of law that if you find from this evidence, and -by its greater weight, the burden being upon the plaintiff, that these four notes, aggregating $2,995.17, were made for fertilizers shipped and delivered to the defendant under the contract which has been 'offered in evidence, and that he received those fertilizers, then it would be your duty to answer this second issue ‘$2,995.17, with interest.’ ” This instruction forms the basis of one of the defendant’s exceptive assignments of error. We think the exception is well taken and that the instruction must be held for error. His Honor was doubtless misled by what was said in Guano Co. v. Southerland, 175 N. C., 228, touching the subject of the burden of proof, but that case is quite unlike the present one. There the willful and deliberate conversion of certain property to the partnership business, by one member of the firm, was not seriously disputed. The question at issue was whether knowledge of the transaction was imputable to the other and surviving partner, who alone was being sued. The trial court instructed the jury that, the property having been wrongfully converted by one of the members of the partnership to the firm’s business, the law would presume that the other partner had knowledge of it, requiring him to come forward with evidence to show the contrary, if he would escape liability from such conduct. This instruction was approved and was clearly correct under the facts of that case. The question of knowledge was peculiarly within his own information. Hosiery Co. v. Express Co., 184 N. C., 478. But the point at issue here is quite a different matter. The extent of the defendant’s liability under the second issue and'under the default judgment is to be measured by the value of the property, or choses in action, wrongfully converted by the defendant. This must be shown by the plaintiff, and the date or dates of such conversion or conversions must be found by the jury, where the plaintiff is demanding interest, as it is here, on the value of the property so converted, and from the time of its conversion. McLeod v. Nimocks, supra. The plaintiff is not simply asking for a judgment on the contract, but it is also seeking to establish the defendant’s liability in tort for the wrongful conversion of its property. Organ Co. v. Snyder, 147 N. C., 271; Boykin v. Maddrey, 114 N. C., 90. There is evidence appearing on the record tending to show, not only certain wrongful conversions by the defendant, but also the approximate dates thereof — making out a prima facie ease for the plaintiff — but this *315 did not shift the burden of proof to the defendant. See Speas v. Bank, 188 N. C., p. 529, where the matter is fully discussed. It was still a question for the jury on the plaintiff’s evidence. McDowell v. R. R., 186 N. C., 571; Cox v. R. R., 149 N. C., 117. It does not follow as a matter of law, though the jury would have been warranted in so finding from the evidence in the case, that the defendant wrongfully and intentionally converted the fertilizers,'or the collection from sales thereof, to his own use, simply because he offered no evidence on the hearing. He took the risk of an adverse verdict in failing to do so, but that is all. Speas v. Bank, supra; White v. Hines, 182 N. C., 275. In this respect there was error in the charge. It was in evidence that some of the fertilizers were shipped directly from the plaintiff’s factory to customers of the defendant, on orders from the defendant; and, while under the contract, the defendant bound himself to pay for such shipments, he would not be liable for same in tort, unless collections were made therefor and wrongfully converted to his own use. This was the question at issue on the trial. In Guano Co. v. Southerland, supra, the plaintiff was aided by a presumption of law imputing to one partner knowledge of the firm’s business and what was done by the other partner in furtherance of that business, but in the-present ease there is no presumption of conversion arising from the evidence — only a permissible inference to that effect. Herein lies the distinction between the two cases. Rut as the default judgment, rendered herein, established the plaintiff’s right to recover, at least nominal damages, on its action for conversion, the controversy reduced itself to a question of fact as to what should be the jury’s answer to the second issue. The above instruction, we think, was prejudicial to the defendant in view of the evidence appearing in the case. Again, we find nothing on the record which would seem to warrant his Honor in fixing 28 December, 1915, as the date from which the alleged misappropriations or the value of the properties converted should draw interest. This was a matter for the jury. Bond v. Cotton Mills, 166 N. C., 20. True, the answer to the second issue is “$2,995.17, with interest,” but the date is not specified. Conceding that the plaintiff’s evidence tended to establish 28 December, 1915, as the date from which interest might properly be allowed, still the date was important, the interest running, as it does, over a long period of time, and this was a matter for the jury to determine. Harper v. R. R., 161 N. C., 451. The remaining exceptions are not likely to be presented on another hearing, and we shall not consider them now. For error in the charge, as indicated, there must be a new trial, and it is so ordered. New trial.