Merchants National Bank v. Carolina Broom Co.

OoNNOR, J. The court instructed tbe jury that if they found the facts to be as testified by all the witnesses they should answer the first issue, “$1,500, with interest from 1 September, 1922”; the second issue, “$3,000”; and the third issue “Yes.” Defendant excepted to this instruction and assigns same as error. Defendant also excepted to the judgment signed, and assigns same as error. The vital issue between plaintiff and defendant, I. L. Howell, was .not submitted to the jury. There is no admission in the pleadings or in the record which determines the issue raised by the allegation in the complaint that plaintiff is the owner and entitled to possession of the property, and the denial in the answer of defendant Howell. With this material allegation denied by the answer, and not passed upon by the jury, no judgment can be entered in this action. The controversy between the parties with respect to this issue has not been and could not be determined by the answers to the issues submitted. The verdict is insufficient to support a judgment, for no facts are found determinative of this controversy. This is a defect upon the record which is presented to this Court for review by the appeal, and although no exception appears to have been taken to the issues as submitted and no other issue tendered by appellant, a new trial must be ordered. Upon the pleadings, an issue must be submitted to and answered by the jury, substantially as follows: “Is plaintiff the owner and entitled to possession of the personal property described in the chattel mortgage, as alleged in the complaint ?” Strauss v. Wilmington, 129 N. C., 99; Hatcher v. Dabbs, 133 N. C., 241; Pearce v. Fisher, 133 N. C., 335; Spruill v. Davenport, 178 N. C., 366. As there must be a new trial of this action, it may be needless to discuss or pass upon the assignments of error made by defendant. However, we deem it proper to consider the exception to the instruction of the court that if the jury finds the facts to be as testified to by all the witnesses they should answer the third issue “Yes.” The chattel mortgage relied upon by plaintiff to support its allegation of ownership of the property described in the complaint, was executed by the Carolina Broom Company, a corporation, on 2 March 1920, to M. A. Griffin, J. G. Jacobs and M. R. Medlin to secure a note payable to them for $2,500, due 1 June, 1920; this mortgage was transferred without recourse by the payees to George W. Byars, president of the corporation on 7 July, 1921 and on that date credits aggregating $2,669.30, dated 24 July, 1920, 8 September, 1920, 12 September, 1920 and 7 July, *511 1921 were endorsed, tbereon; on 4 October, 1921 tbe Carolina Broom Company was dissolved; tbe note upon wbicb tbis action was brought was executed on 17 July, 1922, and wben tbe chattel mortgage was deposited with plaintiff, as now appears from tbe evidence, tbe debt secured thereby was long past due and tbe mortgage itself showed that payments bad been made tbereon aggregating $2,669.30. There is evidence that tbe $1,500 note, dated 17 July, 1922, was in renewal of a note theretofore executed by tbe makers payable to tbe plaintiff but there is no evidence of tbe date on wbicb tbe original indebtedness to tbe plaintiff was contracted. There was error in tbe instruction of tbe court with respect to tbe third issue. Tbis issue, however, is not raised by tbe pleadings and should not be submitted upon tbe new trial. New trial.