Carroll v. . James

PeR Cueiam. It 'is admitted that the amounts found in answer to the second, fourth, and sixth issues are proper charges against the defendant, and that the plaintiff must "account fpr the value of the property as found by the answer to the third issue. The ruling of his Honor that, the plaintiff is liable for $240, the value of the tobacco, instead of for $128.90, the net proceeds of its sale, is correct, because the plaintiff was at the time a mortgagee, and is, as such, accountable for its reasonable value". The plaintiff is entitled to be credited with the reasonable cost of grading and marketing the tobacco, as found by the *514 ninth issue, and the defendant ought not to complain of this, as the jury say, in response to the fifth issue, they agreed to it, and in addition to the rent, paid out of the proceeds of the sale of tobacco, which is included in the seventh issue, and not in the ninth, and which the plaintiff alleges in his reply to be $15.50. The plaintiff must also be credited with the amount of the Supreme Court cost ($51.80). Smith v. French, 141 N. C., 2; Smith v. R. R., 148 N. C., 335. No satisfactory adjudication can be made as to the cost of the Superior Court upon the record before us, as it does not appear whether the tobacco came to the possession of the plaintiff before or after the commencement of the action. The execution of the note secured by the chattel mortgage and its amount are admitted, and the whole controversy in the Superior Court was as to the value of the property seized under the claim and delivery proceeding, and as to the value of the tobacco and the expenses incurred, and this controversy continued up to and including the last trial. The defendants allege that the tobacco was worth $500, and that the plaintiff had paid $112 to their use out of the proceeds, leaving a balance of $388 due by the plaintiff to the defendant on this item. If this allegation is true, and the tobacco came to the possession of the plaintiff prior to the commencement of the action, there was nothing due on the mortgage debt of $232.50 when the action was commenced, and as the plaintiff had to show some amount to be due, the allegation was in substance the denial of the right to maintain the action, which continued in issue up to the trial, and the verdict of the jury establishes the fact that this allegation is not true, and that some amount was due at the commencement of the action' on the mortgage debt, to wit, $232, with interest from, 2 March, 1908, subject to a credit of"$6, less $200, the remainder of proceeds of sale of tobacco after deducting the reasonable cost of grading and marketing. In this view of the case, the plaintiff would be entitled to a judgment against the defendants for the costs of the Superior *515 Court, because tbe right to maintain tbe action bas been denied and tbe costs bave been incurred in successfully- maintaining it. On tbe other band, if tbe tobacco was delivered to tbe plaintiff after tbe commencement of tbe action, there was no denial of tbe right of tbe plaintiff, and defendants having successfully maintained their contention as to tbe matters in controversy, and a balance being due them, they should recover their costs. • We are not inadvertent to tbe first paragraph of tbe defendants’ answer, but construe that in connection with tbe other allegations. In the event judgment should be entered in favor of tbe plaintiff for tbe cost of tbe Superior Court, be would not be entitled to bave tbe amount thereof applied in reduction of tbe judgment in favor of tbe defendants, because be bas not paid these costs, and while tbe recovery is in bis name, tbe items' entering into tbe judgment for costs will belong to officers and witnesses. It is, therefore, ordered that tbe judgment of tbe Superior Court be modified by crediting tbe same with $51.80, tbe costs * paid in the Supreme Court, without interest, and with $15.50 rent, if tbe defendants agree to that amount, and if they do not so agree, then with such amount for rent as a jury shall determine was paid by tbe plaintiff out of tbe proceeds of -the sale of tbe tobacco. It is further ordered that tbe time when tbe said tobacco was delivered to tbe plaintiff be ascertained by agreement of tbe parties or by tbe verdict of tbe jury, and that judgment for tbe costs of tbe Superior Court be entered in accordance with the facts and this opinion.. Let tbe costs of this appeal be divided. Modified and affirmed.