Shields v. . Payne

Smith, C. J,- (After stating the case.) In our opinion, both *293 rulings were 'Correct The questions will be examined in order: 1. The superior court has jurisdiction of the cause by the -express words of .the .statute. Bat Rev., ch. 45, § 133. This .section enacts that “ .an action may he brought by a creditor against an executor, .administrator or collector on a demand at any time after it is due. But no execution shall issue against the executor, administrator or collector, on a judgment therein against him without leave of the court, after notice,” &c. If- the provision is, by construction, to be limited to actions in the probate court, there would be no tribunal for the trial of suits .for damages,-and .after death the injured party would be without remedy. The jurisdiction of the superior court is sustained in the case cited by the plaintiff’s counsel, Heilig v. Foard, 64 N. C., 710. The 73d section of the act and the case of Ballard v. Kilpatrick, 71 N. C., 281, refer to proceedings in the nature of creditors’ bills intended to enforce a final settlement of the administration account and a distribution of the assets of the estate, of which exclusive jurisdiction was vested in the probate court until, by the passage of the act of 187,6-77, ch. 271, § 6, concurrent jurisdiction was conferred upon the superior court in term time. 2. There are two views in which the contract may be considered as shown in the testimony. First, the'delivery of the goods in May is to be the consummation of an incomplete contract and a satisfaction for the price of the land; otherwise payment must be made in money. Second, the property having vested in the plaintiff, the goods themselves are to remain in possession of the intestate until the time of re-delivery, and in default of such return, it was to be a resale to the intestate and a revival of his original indebtedness. In either mode of construing the agreement, -the .intestate’s default ox refusal will be attended with the same ré- *294 suits, the- property in the goods, remainiilg in or being restored to the intestate, and the obligation to pay the price of the land or the price of the goods, the estimated value of each being the same left unimpaired and in full force. This seems to have been the intention of the parties and Is a fair and reasonable interpretation to be put upon their agreement. The issue was framed and the trial conducted, up to the rendering of the verdict, upon this common understanding of its legal effect, and the jury find under instructions,, acceptable to the counsel of both parties, the existence of a special contract on which it was admitted the plaintiff’s right of recovery depends. . The court very properly refused to. arrest judgment or order a new trial,, for any .reason assigned. The authorities, called .to our attention by the defendant’s counsel do not conflict with this opinion. No error. Affirmed.