M. & J. Used Cars, Inc. v. Easton , 5 N.C. App. 695 ( 1969 )

Campbell, J.

The plaintiff makes two assignments of error. The first to the effect that the “verdict and judgment is contrary to and unsupported by any of the evidence.” The second is “such verdict and judgment is contrary to the applicable law.”

M. & J. Used Cars, Inc., is a North Carolina corporation with its principal stockholder and president being George McLamb (McLamb).

L & T Motor Company (L & T) was a partnership with two partners, Tommy Pittman (Pittman) and Larry Hall.

Both plaintiff and L & T carried on their business operations in Johnston County, North Carolina.

The defendant lives in Goldsboro, Wayne County, North Carolina, and is engaged in a mobile home business and in connection with his business has a used car dealer’s automobile license.

At the time involved in the transactions pertaining to the Corvette automobile in this case, L & T conducted the partnership business from property which it rented on a month-to-month basis from plaintiff.

Plaintiff, acting through McLamb, and L & T acting through Pittman, over a period of several years conducted business transactions wherein Pittman would locate an automobile, and in order to purchase the automobile, Pittman would issue a draft drawn on plaintiff by him. The title to the automobile would be taken either in the name of L & T or in the name of plaintiff. The automobile would be conditioned by L & T and then sold by L & T. The proceeds from the sale would be applied first to repay plaintiff for the purchase price of the vehicle and then the profit would be divided with one-third going to plaintiff and two-thirds going to L & T. This course of conduct had been going on for several years.

In October 1966 Pittman purchased the Corvette from Cobb Motor Company in Goldsboro. The purchase of the Corvette was-handled in the same manner as previous purchases, namely, Pittman issued a draft drawn on plaintiff for the purchase price, and the title was placed in the name of L & T.

Shortly after purchasing the Corvette, Pittman sold the Corvette to a Mrs. Barbee. Mrs. Barbee borrowed $1,603.25 on 29 October 1966 from First Citizens Bank, Smithfield, North Carolina, and used the Corvette as security for said loan. The purchase price received from Mrs. Barbee was divided between plaintiff and L & T as usual.

The Department of Motor Vehicles of the State of North Carolina issued a certificate of title for the Corvette to Mrs. Barbee dated 2 November 1966, and showed on the face of the certificate of title the first lien in the amount of $1,603.25 dated 29 October 1966 and lienholder to be First Citizens Bank, Smithfield, North Carolina.

In December 1966 the Corvette was owned by Mrs. Barbee subject to the first lien to First Citizens Bank, Smithfield, North Carolina. The bank had the certificate of title issued by the North Carolina Motor Vehicles Department, and neither plaintiff nor L & T had any interest whatsoever in said vehicle.

During the month of December 1966, Mrs. Barbee brought the Corvette to Pittman and requested him to sell the Corvette for her. Pittman took the Corvette to Goldsboro and in his words “pawned” it to the defendant for $500.00. This was done on 27 December 1966. In addition to getting $500.00 from the defendant, Pittman gave possession of the Corvette to the defendant and gave him a piece of paper reading in part:

“Here Is The Heal

CASH SALES PRICE — $1,000.00

TOTAL DOWN PAYMENT — $500.00

UNPAID CASH BALANCE —$500.00

Payable in one installment of $500.00

First Installment Becomes Due on January 7, 1967.

s/ L & T MOTORS

By: Tommy Pittman”

The Corvette was described in the paper writing by year, make, body type and serial number. The paper writing was a printed form, and in addition to the portions quoted above contained other printed matter and blank spaces unfilled.

At most the printed paper writing signed by Pittman and given to the defendant on 27 December 1966, represented only a memorandum and certainly did not constitute a bill of sale.

In this case trial by jury was waived and the parties agreed that the Court find the facts. “It is the rule in North Carolina that where the parties waive a jury trial and agree that the Court may find the facts, they thereby transfer to the Judge the function of weighing the evidence, and his findings are conclusive on appeal if supported by any competent evidence, notwithstanding the fact that evidence to the contrary may have been offered. . . .” Huski-Bilt, Inc., v. Trust Co., 271 N.C. 662, 157 S.E. 2d 352.

The first four numbered findings of fact by the trial court are supported by some of the evidence in the case.

Finding of Fact No. 5 is supported by some of the evidence in the case except for that portion reading, “. . . that on December 27, 1966, Tommy Pittman sold the 1962 Chevrolet Corvette automobile, Serial No. 20867S107598, to the defendant for $1,000.00 and signed the bill of sale as follows: ‘L & T Motors, by Tommy Pittman'. . . .”

The defendant introduced evidence, and Pittman testified as a witness for the defendant. Pittman testified that after the automobile had been sold to Mrs. Barbee and after she had acquired the certificate of title thereto issued by the Department of Motor Vehicles which she had left at the First Citizens Bank at Smithfield as security for the first lien on the automobile in the amount of $1,603.25, she returned the automobile to him and requested that he sell it for her. At that time the plaintiff knew nothing about the transaction between Mrs. Barbee and Pittman. The plaintiff had no interest whatsoever in the automobile at that time. Pittman testified that he was acting as an agent for Mrs. Barbee in trying to sell her automobile.

While Pittman had the automobile trying to sell it for Mrs. Barbee, he needed §500.00, and he went to Goldsboro for the purpose of obtaining $500.00. He testified that in the transaction with the defendant in Goldsboro he was acting for himself and not for Mrs. Barbee and that he borrowed the $500.00 for himself. He testified, “I was borrowing $500.00 and pawning the car.” At the time of obtaining the $500.00 from the defendant, Pittman gave defendant the paper writing above mentioned and titled “Here Is The Deal.” Pittman described it as being, “[wjell, I had to give the man something” when he was borrowing $500.00 on the automobile.

Pittman never repaid the $500.00 which he claimed to have borrowed from the defendant. Later in the month of May 1967, Pittman drew a draft on the plaintiff for $1,350.00 payable to Mrs. Barbee. This draft was dated May 10, 1967, and the plaintiff declined to recognize the draft and authorize its payment. A few days thereafter, Mrs. Barbee and Pittman met with McLamb, the President and principal stockholder of plaintiff, and McLamb authorized plaintiff’s bank to accept the draft of $1,350.00 and pay it. This was done on 18 May 1967 and simultaneously with the payment of the draft, Mrs. Barbee executed the assignment of title transferring the title to the automobile to plaintiff, and First Citizens Bank released its first lien. Pittman testified that at this time he informed plaintiff that he owed the defendant $500.00 on the automobile and Pittman agreed to pay the $500.00 that he owed the defendant. Pittman further testified that he expected to get the $500.00 when he settled up with plaintiff. He testified, “we were to straighten'-up and settle up, and I should have had enough money coming to pay the $500.00, and that is what I agreed to do that day, but of yet, we have never settled up.” Plaintiff never agreed to pay anything more.

The defendant testified in his own behalf that he had a license to deal in motor vehicles in North Carolina and has done so since 1960. That he had known Pittman since 1960; that he knew McLamb by sight, but had had “[n]o business transactions” with him. Pursuant to a telephone call, he went to the place of business of a Mr. Sasser who also was in the automobile business. On arriving there, he had a conversation with Pittman. He gave Pittman $500.00 in cash and accepted possession of the automobile and the paper writing “Here Is The Deal.” Since that time he has had possession of the automobile. He testified that he did not know that plaintiff had any interest in this particular automobile. Pie thought he was purchasing the automobile from Pittman and L & T Motors. He testified that he thought he was making a $500.00 down payment and that Pittman was supposed to get the title to the vehicle some time thereafter, and when he delivered the title to him, he would then pay the remaining $500.00. He testified that he kept after Pittman on several occasions about the title, and “[i]n numerous conversations, he always had some type of an excuse. ... On another occasion, Tommy asked me what it would take to get the car back from me. This was after I had had the car for some time and could not get a title. I told Tommy that I wanted my money back, or I wanted the title. He asked me if I would give him the car back, if he paid me my $500.00 back. ... On numerous occasions, I told him ‘yes.’ ” He further testified that Pittman told him that he was the owner of the automobile, that is L & T Motors was the owner. Pittman did not mention Mrs. Barbee to the defendant, and the defendant never saw a title to the automobile.

Since 1961 transfer of ownership of an automobile by an owner thereof is not effective until the statute has been complied with. “What the amendments of 1961 say is: The vesting of title is deferred until the purchaser has the old certificate endorsed to him and makes application for a new certificate.” Credit Co. v. Norwood, 257 N.C. 87, 125 S.E. 2d 369.

The defendant did not acquire title to the Corvette and the paper writing “Here Is The Deal” at most was merely a memorandum of what the parties, the defendant and Pittman, intended to do in the future. Even if that paper writing had been a valid bill of sale, it would not have conveyed title as title to a motor vehicle cannot be transferred in North Carolina by that method. Bank v. Motor Co., 264 N.C. 568, 142 S.E. 2d 166. Pittman had no title to the Corvette and no right to deliver possession to the defendant. Defendant acquired no rights in the Corvette as Pittman had none to give.

There was no evidence in the trial of this case to support the findings of fact made by the trial court that the defendant had acquired title to the Corvette.

There is no evidence to support the finding of fact that plaintiff ever agreed to pay anything to the defendant. The defendant never considered the plaintiff involved in the transaction between the defendant and Pittman with regard to this Corvette automobile. The defendant has no claim whatsoever against the plaintiff. The defendant dealt with and relied on Pittman whom he had known for years.

All of the evidence establishes the fact that the plaintiff is the owner and has title to the Corvette automobile.

The judgment of the District Court is reversed, and this cause is remanded for the entry of a judgment not inconsistent with this opinion.

Error and remanded.

BeoCK and Moeeis, JJ., concur.