Chozen Confections, Inc. v. . Johnson

Stacy, C. J. This is the same case that has twice been before us on procedural questions, reported in 218 N. C., 500, 11 S. E. (2d), 472, and again in 220 N. C., 432, where some additional facts are set out, to which reference may be had to avoid repetition. The consignment agreement provides that upon its termination (by written notice) “the party of the second part (Johnson) agrees to turn over and deliver to the party of the first part (Chozen Confections, Inc.) all goods, wares and merchandise, together with all moneys belonging to the party of the first part, then remaining in his hands under the terms of this agreement.” It is in evidence that the president of the plaintiff company went to see the defendant Johnson in Sanford a few days after the cancellation of the contract. The right to turn over the goods then on hand, and receive credit therefor, was made to depend on whether Johnson offered to “turn back to the plaintiff merchantable goods.” As title to the goods was in the plaintiff and the contract at an end, it would seem the plaintiff might well have demanded of the defendant that he “turn over and deliver” to the plaintiff “all goods, wares and merchandise . . . then remaining in his hands,” in accordance with the terms of the contract. At least the rights of the sureties ought not to depend on whether the defendant offered to turn back merchantable goods. They are not so circumscribed by the agreement. There was no hesitancy in demanding that Johnson turn over all moneys belonging to the plaintiff, including the sale price of the goods then on hand and unsold, which latter item was in excess of the provisions of the contract. The defendant did not refuse to turn over, yield up, or surrender, the goods then remaining in his hands. His failure to turn back merchantable goods would not affect the title to the goods. They still belonged to the plaintiff. The agreement was to “turn over and deliver” the goods then on hand to the party of the first part, not to “return” them, or to “reship” them, nor yet to pay for them, or to be liable for their value, if not returned in salable condition. It appears from Johnson’s testimony : “Part of the candy I tendered back is down there in an old building yet. .... I did not use or sell any of the candy after that date.” This provision is not to be confused with another clause in the agreement providing for the “return” of merchandise “in salable condition” to the plaintiff in Charlotte, on certain conditions, during the life of the agreement. The sureties have a right to stand on the terms of their contract. Edgerton v. Taylor, 184 N. C., 571, 115 S. E., 156; Lumber Co. v. Lawson, 195 N. C., 840, 143 S. E., 847. *227 It is true, the defendant Johnson signed a statement admitting his liability. This seems to have been done at the instance of the plaintiff and without a full knowledge of his rights. Hotel Corp. v. Dixon, 196 N. C., 265, 145 S. E., 244. It would not be binding on the sureties. Ins. Co. v. Bonding Co., 162 N. C., 385, 78 S. E., 430; Eason v. Sutton, 20 N. C., 622. There are other items in the account which the sureties are apparently entitled to question. Another trial seems to be necessary. It is so ordered. New trial.