Printing Co. v. . Herbert , 137 N.C. 317 ( 1904 )

This is an action for the recovery of personal property, to wit, a printing press and its fixtures. So far as we are able to gather the facts from the record, it appears that the plaintiff, a corporation and the manufacturer of the press, claims title to the same and the right of possession by virtue of a contract with one W. S. Herbert, now deceased, the agreement being described in the case as "a contract of conditional sale." This contract was dated 26 March, 1902, and was filed for registration 24 July, 1902. No copy of it is set out in the record, (318) and we are not informed as to its contents. It was introduced merely by the general description we have already given. The plaintiff introduced in evidence a series of notes dated 19 July, 1902, a copy of one of the series of notes being set out in the case. It refers to the contract of 26 March and recites that it was given "pursuant to the agreement." The defendant claims the title and right to the possession of the press as receiver of the Kinston Publishing Company, to which company he alleges it was sold and transferred after the date of the contract of conditional sale between the plaintiff and Herbert, and before the date of its registration. It is also alleged by the receiver that the Kinston Publishing Company purchased the press for value and without notice in law of the contract of conditional sale.

There was much testimony introduced by the parties upon the question of the purchase of the press by the publishing company and of the price paid for it. The jury returned a verdict in favor of the defendant. It is stated in the case that "the court charged the jury fully on every phase of the case and gave the contentions of both sides; there was no exception taken to the charge" There are no assignments of error.

While it may be that the conditional sale had not been consummated by the delivery to the plaintiff of the notes for the purchase price, and that there was merely an executory contract to sell, and that, at the time it is alleged the publishing company bought, W. S. Herbert had no title to the press to sell, as contended by the plaintiff's counsel, we cannot consider or decide the question, as there is no exception in the record which raises it. If the plaintiff had asked for an instruction to the jury based upon the contract and the evidence as to the time of giving the notes, and had caused to be set forth in the case a copy of the contract, so that we might determine its nature and legal effect with (319) reference to the time of the delivery of the notes, the proposition argued at length in the brief of the counsel would be before us. But there was no prayer for instructions either as to the plaintiff's or the defendant's evidence, and no exception to the charge. There is, therefore, nothing to consider in respect to the charge or the failure to charge. We cannot yield to the argument that, as there is no evidence of a purchase for value by the publishing company, we should reverse the judgment or award a new trial because the statute (The Code, sec. 957) requires that we should render such a judgment as, on inspection of the whole record, it shall appear to us ought in law to be rendered thereon. That section does not apply. The alleged defect does not arise in the record as distinguished from the "case on appeal." Taylor v. Plummer, 105 N.C. 56. An objection that there is no evidence must be raised before verdict by a proper prayer for instructions to the jury, and comes too late after the objector has taken his chances upon the verdict and has lost. S. v. Harris, 120 N.C. 557.

While we cannot consider the argument of counsel upon the effect to be given to the negotiations and dealings between the plaintiff and Herbert, and between the latter and the Kinston Publishing Company, with a view of determining who has the title to the property, we yet think that an error was committed in the admission of testimony which entitles the plaintiff to a new trial. Several witnesses, and among them D. F. Wooten, were permitted to testify as to the declarations made to them or in their hearing by W. S. Herbert tending to show, and introduced for the purpose of showing, that he had received value from the publishing company for the press. This evidence was nothing more than hearsay, and should have been excluded. It is evident that the (320) witness Wooten had no personal knowledge of the matters to which he testified, for he closes his testimony as follows: "I do not know whether Mr. Herbert sold the press to the company or received a penny for it." What he had previously said, as coming from Herbert, was clearly incompetent and was calculated to prejudice the plaintiff before the jury upon the question they were trying. The plaintiff further contended that the testimony of the several stockholders was incompetent under section 590 of The Code. It is not necessary to decide this question, as it may not again be presented, and, besides, the facts as to the insolvency of the publishing company are not sufficiently explicit for us to pass upon them intelligently.

The defendant claims that the publishing company was a purchaser for value, and in order to sustain this plea he must show that the purchase was at "a fair and reasonable price, according to the common mode of dealing between buyers and sellers." (Fullenwider v. Roberts, 20 N.C. 278), or, as is said in Worthy v. Caddell, 76 N.C. 82, "the party assuming to be a purchaser for valuable consideration must prove a fair consideration, not up to the full price, but a price paid which would not cause surprise or make any one exclaim, ``He got the property for nothing; there must have been some fraud or contrivance about it.'" The principle is clearly stated by Connor, J., in Collins v. Davis,132 N.C. 109. It is alleged that Herbert received stock of the publishing company for the press. It does not appear what was the value of this stock. The company, it is said, is now insolvent. What its condition was when the stock was issued to Herbert, if it ever was issued, is a material inquiry. The publishing company must have paid something more, as we have seen, than what would be sufficient as a consideration to support a contract, if the defendant expects to show that the company was a purchaser for value. It must also appear that the press was bought by the company itself, and not merely that the negotiations for (321) the purchase were conducted by one of the stockholders, or even by all of them when not assembled in corporate meeting. Duke v. Markham,105 N.C. 131; Pinchback v. Mining Co., ante, 171. The purchase must have been the corporate act of the company. While the corporation need not act directly, but may be represented by one or more individuals in making contracts, provided he or they are duly authorized so to act in its behalf, it must at least be the act of the corporation, and not of its individual members, in order to be binding.

The questions we have mentioned may be more fully presented at the next trial, and we do not intend by what has been said to intimate any opinion in regard to them; in the present state of the evidence we could not well do so. For the error in admitting incompetent testimony there must be another trial. New trial.

DOUGLAS, J., concurs in result.

Cited: Jones v. High Point, 153 N.C. 373; Hodges v. Wilson, 165 N.C. 332.

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