Copeland v. . Fowler

*355 Hoke, J., after stating the case: There was error in the order dismissing the case as on judgment of nonsuit, arising, if the assignment of error correctly, indicated the reason for the ruling, from a misconception of the nature of plaintiff’s demand. According to plaintiff’s version, the contract between these parties was not confined to an exchange and $65, payable 1 November, 1908, but contained the further stipulation that defendant was to secure this -boot by a chattel mortgage on the mare and additional personal property; and plaintiff’s evidence further tended to show that defendant has failed and refused to comply with the agreement to give the chattel mortgage, and that he has put it out of his power to mate full compliance-by disposing of the mare to some third party. If these facts are accepted by the jury, the authorities are all to the effect that an action presently lies, and that ordinarily the damages will be the amount indicated by the contract — if the note was to bear interest, the amount and interest; if not, then the present value of the note, with interest thereon from the commencement of the. suit. McRae v. Morrison, 35 N. C., 46; Young v. Dalton, 83 Tex., 497; Rinehart v. Olwine, 61 Pa. St., 157; Hanna v. Mills, 21 N. Y., 90; Bishop on Contracts, sec. 827; Clark on Contracts, p. 448. In Rinehart v. Olwine it was held: “When goods are sold on credit, the vendee to give his note, which he refuses to do after the goods are delivered to him, an action may be maintained for a breach of the contract before the expiration of the credit, in which the measure of the contract is the price of the goods.” And in Hanna v. Mills, supra, the Court held as follows: “1. Where goods are sold, to be paid for by a note or bill, payable at a future day, which is not delivered according to the terms of sale, the vendor may sue immediately for a breach of the special agreement and recover as damages the whole value of the goods, allowing a rebate of interest during the stipulated credit. He cannot, however, maintain assumpsit on the common counts until the credit has expired.” Nor is this position in any way affected by the fact that plaintiff has sued out the ancillary process of arrest and bail on an affidavit charging fraud and deceit on the part of the defendant in the contract by which plaintiff’s property was obtained. This does not change the nature of the action at all, which is for a breach of the contract; and, on the facts indicated in the affidavit, the course pursued comes within the express provisions of the statute (Revisal 1905; sec. 727, subsec. 4), in part, as follows : “When defendant has been guilty of a fraud in contract *356 ing the debt or incurring the obligation for which the action is brought.” It may be well to note that, in cases of this kind, our decisions are to the effect that, on recovery had, there can be no imprisonment under final process, unless the issue of fraud has been "expressly submitted and determined by the jury against the defendant. Pell’s Revisal, sec. 625, and authorities cited, notably Ledford v. Emerson, 143 N. C., 521. For the error indicated, the order of nonsuit will be set aside and a new trial had. Error. MANNING, J., did not sit.