Land Co. v. . Bostic , 168 N.C. 99 ( 1914 )

Civil action to recover possession of a pair of mules.

Verdict and judgment for plaintiff, and defendant excepted and appealed. The question at issue in this case is very largely one of fact for the decision of the jury.

Plaintiffs claimed and offered evidence tending to show that plaintiff agreed to sell Bostic Wells the pair of mules, wagon and harness for $600 if they could pay as much as $150 or $200 down and give a chattel mortgage for the remainder of the purchase money; that the mules were turned over to defendants to try, and that they had neither made the payment nor executed the mortgage.

On the other hand, the defendants contended that they, C. H. Bostic and R. L. Wells, bought the mules outright and were to pay for (100) them as they could and within a reasonable time; that they had afterwards sold the mules to their codefendant, P. V. Bostic, for full value, and had been paid the price.

The jury have accepted plaintiff's version of the matter, and this being true, no title passed to Bostic Wells, nor could they pass any title to the purchaser.

The facts do not present a case of a regular conditional sale requiring registration against third persons; but, if plaintiff's testimony is accepted, no title ever passed, conditional or otherwise, under the principle declared in Millhiser v. Erdman, 98 N.C. 292.

It was earnestly urged for defendants that on the trial due significance was not allowed to a certain letter sent by Bostic Wells to plaintiff, inclosing a check for $25 and saying "it was a payment on the mules bought of the company." While this statement tends to confirm defendant's position rather than plaintiff's, it is not sufficiently definite to be controlling on the question, and its province is only as a piece of relevant evidence on the issue, and was so treated by his Honor. It does not come under the decisions where a creditor accepts money under a clear and definite condition that the remittance is to be in full, as in Bank v. Justice,157 N.C. 373, and cases of that kind; but it is of that character which permits interpretation and comes rather under Aydlett v. Brown,153 N.C. 334, and Armstrong v. Lonon, 149 N.C. 434, in which the effect must be referred, with other relevant testimony, to the jury.

The affidavits offered in defendant's motion for a new trial are not, in our opinion, sufficiently conclusive to justify the court in granting defendant's application. While they tend strongly to support defendant's position, it is rather because they tend to contradict a witness for plaintiff, and, apart from this, they are only in the nature of cumulative testimony, and, under our decisions, are not sufficient to sustain the motion. S. v.Starnes, 97 N.C. 423.

After giving the matter our most careful consideration, we find no reversible error, and are of opinion that the judgment on the verdict should be affirmed.

No error.

Cited: Young v. Stewart, 191 N.C. 305; S. v. Casey, 201 N.C. 624.

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