Universal C. I. T. Credit Corp. v. Saunders , 235 N.C. 369 ( 1952 )

70 S.E.2d 176 (1952) 235 N.C. 369

UNIVERSAL C. I. T. CREDIT CORP.
v.
SAUNDERS et al.

No. 243.

Supreme Court of North Carolina.

April 9, 1952.

Gavin, Jackson & Gavin, Sanford, for defendant J. N. Saunders, appellant.

J. G. Edwards and George M. McDermott, Sanford, for plaintiff, appellee.

Pittman & Staton, Sanford, for defendant Downtown Motors, appellee.

JOHNSON, Justice.

Decision here turns on whether the court below erred in denying the motion of the defendant Saunders for judgment in accord with the allegations of the plaintiff's pleadings.

The automobile having been seized under claim and delivery and delivered to the plaintiff, the plaintiff is required to account to the defendant Saunders for its value as at the time of seizure. G.S. § 1-475; Crump v. Love, 193 N.C. 464, 137 S.E. 418; T. & H. Motor Co. v. Sands, 186 N.C. 732, 120 S.E. 459; Randolph v. McGowans, 174 N.C. 203, 93 S.E. 730; Gavin v. Matthews, 152 N.C. 195, 67 S.E. 478; Griffith v. Richmond, 126 N.C. 377, 35 S.E. 620.

In the complaint plaintiff alleges that the sum of $1,763.36 is due by the defendant Saunders on the conditional sale contract. It is further alleged in the complaint (and also in the affidavit in claim and delivery and in the plaintiff's replevin bond) that the automobile is of the value of $2,000. Also, the plaintiff in its reply reiterates the allegation that the automobile is of the value of $2,000. The reply was filed some four months after the plaintiff obtained possession of the automobile under claim and delivery.

Under the Code system of pleading which obtains in this jurisdiction, a case is to be tried upon the issues of fact which arise upon the pleadings. Every material fact alleged on one side and denied on the other constitutes an issue to be established by sufficient evidence; whereas every material fact alleged on one side and not controverted or admitted on the other side is taken to be true. G.S. § 1-159; Bonham v. Craig, 80 N.C. 224; Cook v. Guirkin, 119 N.C. 13, 25 S.E. 715. This well-established rule dispenses with the necessity of proving matters which, in the absence of denial, the law deems admitted.

And in searching the pleadings to determine the material facts which are controverted and those which are taken as true, the rule is that each party is bound by his pleading, and unless withdrawn, amended, or otherwise altered, the allegations contained in a pleading ordinarily are conclusive as against the pleader. Suggs v. Braxton, 227 N.C. 50, 40 S.E.2d 470; Whichard v. Lipe, 221 N.C. 53, 19 S.E.2d 14, 139 A.L.R. 114; 71 C.J.S., Pleading, § 59.

Under application of the foregoing principles, it would seem that Saunders should have been permitted to terminate the litigation with the plaintiff on the basis of the allegations set out in the complaint.

However, Saunders was not entitled, as suggested in his brief, to judgment on the plaintiff's complaint and also to assert the rest of his counterclaim against the plaintiff by invoking the provisions of G.S. § 1-510. This statute may not be invoked where, as here, its application would give sanction to piecemeal recoveries which would be essentially inconsistent. On this record judgment in conformity with the plaintiff's allegations would fix the value of the automobile at $2,000. This may not be reconciled with defendant Saunders' allegation of substantially greater value. In like manner, judgment in accord with the plaintiff's allegations, as sought by Saunders, would fix the amount of his debt at the sum of $1,763.36, and this may not be harmonized with the allegations of the counterclaim which would reduce the debt to $1,525 by striking out as usurious the carrying charges of $238.36.

In any event, it does not appear on the record that the motion of Saunders was conditioned upon any such attempted reservation of right to prosecute further the counterclaim against the plaintiff. The record indicates that after the jury was impaneled the defendant Saunders "moved for judgment on the pleadings for the sum of $236.64 as the difference between the value of (the) property as alleged and the debt as alleged." It thus appears that Saunders, in so moving for judgment, was offering, in effect, to withdraw his answer and counterclaim as against the plaintiff and abide settlement of the case accordant with the allegations of the complaint.

True, the plaintiff may have made a counter motion for leave to amend the complaint in respect to the alleged value of the automobile, G.S. § 1-163; Perkins v. Langdon, 233 N.C. 240, 63 S.E.2d 565, and if leave to amend had been granted, then, of course, Saunders might have withdrawn his motion. However, in the absence of a motion to amend, it must be presumed that the plaintiff stood on its pleadings as originally filed.

Therefore, on the record as presented, Saunders was entitled to have the litigation terminated, as between him and the plaintiff, on the basis of the plaintiff's allegations. The trial court erred in overruling Saunders' motion. This error invalidated all subsequent proceedings in the court below, and it is so ordered. The case seems to have been tried on a misapplication of the pertinent principles of law. It will be remanded to the trial court for another hearing. Coley v. Dalrymple, 225 N.C. 67, 33 S.E.2d 477. This will afford the defendant Saunders an opportunity to renew his motion for judgment on the pleadings. Likewise, the plaintiff, if so advised, may move to amend.

Decision here reached dispenses with detailed discussion of the remaining exceptive assignments of error. However, a perusal of the record reflects fatal lack of supporting merit for the other exceptions brought forward by the defendant Saunders, except those which challenge the novel procedure of fixing the value of seized property and disposing of a claim and delivery lawsuit without the intervention of a jury. See Crump v. Love, supra; Gavin v. Matthews, supra. Besides, proof of the amount the seized property brought at foreclosure sale a considerable time after seizure may not be treated as conclusive on the issue of value at the time of seizure. 32 C.J.S., Evidence, § 1041. Also, on the question of lifting the burden of proof and taking from the jury an issue of fact, see McCracken v. Clark, 235 N.C. 186, 69 S.E.2d 184, and compare Commercial Solvents v. Johnson, N.C., 69 S.E.2d 716.

New trial.