Brown v. Burlington Hotel Corp.

CoNNOR, J. On tbe cause of action alleged in bis complaint, tbe only relief to which plaintiff is entitled in this action as against tbe defendant, Burlington Hotel Corporation, is a judgment for tbe possession of tbe refrigerating plant which tbe plaintiff sold to tbe defendant, J. F. *86 Somers, and which he installed in the hotel building owned by the defendant corporation. He alleges that in the contract by which he sold said refrigerating plant, he retained the title thereto until the purchase price had been paid in full; that the purchase price has not been paid in full; and that the defendant, Burlington Hotel Corporation, is not an innocent purchaser of said refrigerating plant, for that it purchased and paid for the same, with knowledge that the purchase price had not been paid in full by his vendee, J. F. Somers. The evidence offered by the plaintiff at the trial shows, however, that at the time the defendant, Burlington Hotel Corporation, paid for the said plant, by -the issuance of shares of its capital stock to the defendant, J. E. Somers, in accord.ance with its contract with him, the conditional sale agreement under which plaintiff claims title to the said plant, had not been registered either in Rowan County where both the plaintiff and J. F. Somers resided at the date of their contract, or in Alamance County, where the plant was located at the commencement of this action.- There was evidence tending to show that the president of the Burlington Hotel Corporation knew when he delivered the certificates for the capital stock of said corporation to J. F. Somers, that the said J. F. Somers had not paid the said purchase price in full; there was no evidence, however, tending to show that said president knew that in the contract between plaintiff and the said J. F. Somers, the title to the plant had been retained by the plaintiff. This, however, is immaterial, for in the absence of the registration of the conditional sale agreement in the proper county, no notice of its contents or terms, however full and ample, can affect the title acquired by the Burlington Hotel Corporation by its purchase of the refrigerating plant from J. F. Somers. O. S., 3312. For this reason there was error in the refusal by the trial court of defendant’s motion for judgment as of nonsuit, at the close of the evidence offered by the plaintiff. There was no evidence offered by the defendant. The action should have been dismissed as of nonsuit. C. S., 567. Conceding that by a liberal construction of the allegations of the complaint, a cause of action is alleged therein on which plaintiff is entitled to judgment that he has a lien on the hotel building owned by the defendant, Burlington Hotel Corporation, for the sum of $4,000, and interest, under the provisions of C. S., 2438, plaintiff cannot recover on this cause of action for the reason that there was no evidence at the trial tending to show that plaintiff gave notice of his claim, as a subcontractor, to the defendant, Burlington Hotel Corporation, as owner of the hotel building, before the payment by said corporation to J. F. Somers of the amount due him. Rose v. Davis, 188 N. C., 355, 124 S. E., 567. *87 There was error in tbe refusal of tbe court to allow defendant’s motion made at tbe close of tbe evidence. Tbe action should have been dismissed by judgment as of nonsuit. For this reason it is not necessary to consider tbe assignments of error based upon tbe exceptions with respect to tbe issues. Tbe judgment is Beversed.