Young v. Corbitt Motor Truck Co. ( 1929 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] January 29, 1929. The opinion of the Court was delivered by Some time in the latter part of March, 1927, A.W. Martin, representative of Corbitt Motor Truck Company of Henderson, N.C., defendant, and S.K. Young, plaintiff, entered into negotiations for the sale to plaintiff of a truck, known as Corbitt Truck Model 21. It was agreed between Martin and Young that the purchase price of the truck was to be $1,327.00, delivered in Columbia, instead of $1,570.00 f. o. b. Henderson, N.C.; payable $127.00 cash, and twelve notes for $100.00 each, bearing 6 per cent. interest, and secured by a conditional sale agreement. When Martin submitted these papers to defendant company, new papers were prepared, with an additional sum of $11.00 added to each, to cover finance charges, and Martin was instructed to have Young sign them.

When Martin approached Young with a request to sign the new papers, Young refused to do so; whereupon on March 25, 1927, Martin changed each note from $111.00 to $100.00, and Young signed them. The following was written on the bottom of the "Conditional Sale Agreement": "If this truck does not prove satisfactory it may be turned back and unpaid notes canceled. A.W. Martin."

The notes and conditional sale agreement were all dated March 25, 1927. The notes contain the following: "The express condition of purchase and sale of Model 21 Corbitt Truck No. 217043, for which this note is given, is such that the title and ownership, notwithstanding delivery, does not pass from said Corbitt Motor Truck Company, until this note and interest are paid in full; and if same should become due and remain unpaid, or any portion of the same Corbitt Motor Truck Company, or any of its agents, are hereby authorized to enter upon our premises, or wherever it may be found, and take possession of said Model 21 Corbitt Truck No. 217043, and sell same either at public or private sale, and place proceeds as a credit on this note. This note is to become due and payable upon the removal of the maker from the County in which they reside, or whenever the holder deems itself insecure."

The conditional sale agreement contains the following: "Upon any default in payment or breach of condition or covenant herein made by the Purchaser, or if the Seller shall deem the security for the payment of said notes intended to be afforded hereby insufficient or unsafe, the Purchaser shall on demand by the Seller, forthwith deliver the Corbitt Motor Truck in as good condition as when received by Purchaser upon sale thereof (ordinary wear and tear excepted), to Seller, and should Purchaser fail or refuse upon such demand to deliver the Corbitt Motor Truck as aforesaid to Seller, the Purchaser agrees that the Seller shall have the right without any further notice or demand, forthwith to take possession of the Corbitt Motor Truck, wherever found, and for such purpose Purchaser hereby licenses and authorizes Seller to enter any premises of the Purchaser with or without force or process of law, and forthwith take possession of the Corbitt Motor Truck; if Seller shall so take possession of the Corbitt Motor Truck by reason of any default or breach hereof, or with respect to said notes by Purchaser, Purchaser agrees that all payments made by Purchaser with respect to the indebtedness represented by said notes, shall belong to and be retained by Seller, as liquidated damages for the non-fulfillment or breach of performance of this agreement, for loss in value with respect to the Corbitt Motor Truck, and for the rental value thereof."

On April 7th, the following telegram was sent:

"CFB 162 29 1927 Apr. 7 AM. 11:30

"Henderson N Car 7 1056A "S.K. Young, Columbia, S.C.

"Unless you settle according to our original contract, we refuse to sell you, do not use the truck another trip unless you can settle according to the original agreement.

"CORBITT MOTOR TRUCK CO."

On April 7, 1927, defendant wrote plaintiff a letter the substance of which was as follows: There is evidently a misunderstanding regarding the sale of the Corbitt Model to you by Mr. Martin; Martin told us about a week ago that the truck was sold on a basis of $1,327.00 plus finance charges and insurance on the deferred balance; this morning we received the twelve notes for $100.00 each, and we sent you a telegram (see above); until the matter can be settled on a satisfactory basis, do not use the truck, and we are instructing Mr. Martin to see you without further delay, and repossess the truck or collect the finance charges based on the original agreement. The letter goes on to state the reasons for not agreeing to the papers as signed.

On April 21, 1927, defendant sent the note to Carolina National Bank, the said note was not paid on the 25th, and on April 26th defendant wrote Martin, who was temporarily at Charleston, S.C. a letter as follows:

"April 26, 1927.

"Mr. A.W. Martin, "Berkley Court, "Charleston, S.C.

"Dear Sir:

"We enclose herewith note of S.K. Young, $100.50 due April 25th. We wish you to proceed to Columbia at our expense and collect this note and remit us proceeds; if you cannot collect it, then proceed to take possession of the truck at once, as we do not propose to allow him to use the truck if he is not going to pay us for it. Please give this your prompt attention.

"Very truly, "CORBITT MOTOR TRUCK CO., "R.J. CORBITT, President."

On April 27, 1927, defendant wrote plaintiff the following letter:

"April 27, 1927.

"Mr. S.K. Young, "1318 Assembly St., "Columbia, S.C.

"Dear Sir:

"Your note for $100.50 due April 25th, has been returned to us unpaid by the bank, and we write to ask that you mail us check to cover this at once or pay our Mr. A.W. Martin when he calls on you in regard to same. This is very important and we ask your best attention.

"Very truly, "CORBITT MOTOR TRUCK CO., "N.R. PARHAM, Cashier."

It appears that Martin got the letter inclosing the note on the 27th, and on the morning of the 28th, and very early in the morning, certainly before the stores opened, he found the truck standing in front of the place of business of plaintiff, took it away, and notified the police of his having the truck; the call to police department came about 7:00 o'clock in the morning.

Plaintiff brought this action for $3,000.00 damages.

The first question before the Court is: Was the method employed by Martin the proper method to get possession of the truck?

This leads us to a construction of the note and conditional sale agreement set out above; in the note no precedent demand is necessary, while in the conditional sale agreement it is necessary.

Now why there should be one provision in one paper, and quite a different provision in the other, we cannot even surmise.

It does seem that good business judgment should have dictated that there ought to be uniformity in the procedure of retaking the truck.

But we have nothing to do with why this contradiction appears; we must judge the legal consequences that follow.

We observe:

1. That the papers were prepared by defendant and the blanks furnished by it.

2. That these papers were evidently well understood and were in constant use by defendant.

3. That defendant had possession of both these papers and was in a position to know exactly their contents and provisions, and in any case of doubt had the papers before it for use and inspection.

4. On April 27, 1927, defendant wrote plaintiff to mail it a check or to pay A.W. Martin. In case plaintiff had desired to pay Martin, by Martin's own statement, he had no opportunity to do so, as Martin was in Charleston, and as soon as he got back to Columbia, without any delay he seized the truck. At least, according to defendant's letter plaintiff should have been given the opportunity of making payment to Martin.

In construing the two documents above referred to, the note and the conditional sale agreement, we must read them together. By so reading them in the light of facts and circumstances of this case, defendant was compelled to make demand before it could seize the truck. This provision regarding making demand is in the paper signedby Corbitt Motor Truck Company, and the said company could not take the truck without making demand.

Especially is this position strengthened by the letter in which defendant stated that plaintiff might pay A.W. Martin and then gave plaintiff no opportunity to pay the said Martinbefore the seizure of the truck.

When defendant by its agent seized the truck without making demand, it was a question for the jury to say whether plaintiff was entitled to any actual and punitive damages. The right to the possession of personal property is jealously guarded by the law, and one who deprives another of the possession of property, his action must be supported by legal grounds; and if no such legal grounds exist, the party so taking the property is liable in damages.

It is not necessary to cite authority for this position, as the principles are plain and of everyday application.

The matter of conversion was purely a question for the jury in this case. The following is a short statement of the law on this question: "Conversion may arise either by a wrongful taking of the chattel or by some other illegal assumption of ownership, by illegally using or misusing it, or by wrongful detention." The above was quoted with approval in the case of Ladson v. Mostowitz, 45 S.C. 388,23 S.E., 49, from the case of Harris v. Saunders, reported as a note in 2 Strob. Eq., 370. As was stated by Judge Gary, in the case of Holliday v. Poston, 60 S.C. 109,38 S.E., 451 (quoting 2 Strob. Eq., 370): "Perhaps more accurately defined by another writer thus; a conversion seems to consist in any tortious act, by which the defendant deprives the plaintiff of his goods, either wholly or but for a time. Any act of the defendant inconsistent with the plaintiff's right of possession, or subversive of his right of property, is a conversion."

A later definition: "A ``conversion' is the unlawful exercise of dominion over the property of another." Sherer-GillettCo. v. Moore-Barnes Co., 114 S.C. 387,103 S.E., 766.

Because his Honor erred in first permitting and allowing the plaintiff to testify to the cost and expenses of procuring another truck, over defendant's objection, to use in his business, and in later ruling that said evidence was incompetent, without specifically instructing the jury to disregard such testimony: the error assigned being that under the second ruling of the Court such testimony was irrelevant, and, therefore, incompetent; that the Judge erred in receiving the same in the first place, and in not directing the jury to disregard it after it had been erroneously admitted, said evidence being highly prejudicial to the rights of the defendant.

"By Mr. Taylor:

"Q. Since your truck has been out of your hands, have you had to get another truck?

"Mr. Dickey: We object to that. He has not alleged any special damages. I think he has to allege them to prove them.

"The Court: That would not be special damages. Any damages that would naturally grow out of another's wrong, are not special damages.

"Q. Since your truck has been taken, have you been out of the use of it? A. Yes, sir.

"Q. Mr. Young, have you had to hire a truck since then to use because of this truck being out of your possession? A. Yes, sir.

"Q. Now, you have had the use of trucks, you have had to use them all the time. What is a truck like that reasonably worth a day?

"Mr. Dickey: We object to that testimony upon the ground that he is attempting to prove special damages and special damages have not been alleged.

"The Court: That would not be special damages. That is one of the measures of damages that the Supreme Court has laid down in a case; a wrong has been done by taking a man's property; the reasonable rental for a like truck as near as possible under the circumstances, without a driver, without oil and without gas.

"A. That depends on how long a trip and so on, how much the truck would have to run. It would be from $10.00 to $30.00 a day, that is what I have paid. I have paid one man over $1,500.00 for a truck.

"Q. What I want is during this period of time, you furnishing your own man, gasoline and oil, ordinarily what would a truck rent for, make us one figure? A. You mean a day?

"Q. Yes. A. From $10.00 to $30.00 a day according to what you have to do.

"Q. In your kind of business? A. Running around here in Columbia, it wouldn't be over $10.00 a day; to go from here to Asheville, it would be $30.00 a day.

"Mr. Dickey: We object to all that testimony on the ground that it is highly speculative. He had not said he had to go there.

"Q. How long have you been out of the use of this truck? A. Ever since April 28th, up to now.

"Q. What was the truck worth when they took it from you? A. I don't know. Mr. Martin told me it was worth $1,600.00 and something delivered here. Corbitt Motor Truck Company wrote me it was worth $1,500.00.

"Mr. Dickey: We object, the letter is the best evidence.

"Witness: I don't know what it is worth. I paid $1,327.00 for it."

Thereafter the following appears in the record:

"The Court: I have been thinking over something. Do I understand that this truck was taken by the defendant on the 28th of April, and that he immediately attached it on the 28th?

"Mr. Spigner: Yes, sir.

"The Court: After he attached it the rent could not run. That would be tying it up in the law and I have been thinking of that ever since. If they attached it the same day, it wasn't in their power to turn the truck back.

"(Argument by Mr. Cooper on this point.)

"The Court: He would not be entitled to those damages. I think that would be allowing one to take his act of calling on an arm of the Court in taking the property out of the control of the other party to do anything except give a bond. I don't see why when you act that you can turn around to the other fellow and say ``I had a right to do this, if I had not done this, I would have been entitled to those special damages, but I have done this, therefore, you have got to do something else,' which the law does not necessarily say you have got to do, but it is optional with you. He took the risk of getting himself out of those kind of damages when he attached this truck to get jurisdiction of it, which risk he ran and the Court cannot help him.

"That is the fair justice of the thing. I have been thinking about it 15 minutes. So it was his act that put it in the hands of the law and took it out of the control of the other party to turn the truck back and keep damages from flowing.

"Mr. Cooper: The Sheriff, upon our affidavit, got out an attachment which was directed to attach any and all property of the Corbitt Motor Truck Company within its jurisdiction, or so much thereof as was necessary to protect this judgment. The Sheriff attached two trucks of the Corbitt Motor Truck Company. We released one on bond and chose to release the other.

"The Court: They had a right to release neither or both. The act of getting jurisdiction by attaching this truck would not be apt to minimize damages. That act is optional. He has still got his measure of damages which could do justice in the case, which could be conversion, the highest market value necessary to do justice. I don't see why I should let it in. Strike out all of this about renting another truck. I think I had better keep that out if there is doubt about it. He has got his measure."

It will be observed that the attorney for the appellant in objecting to the testimony did not state the ground upon which his Honor ruled out the said testimony; as the objection was that they were special damages, while his Honor ruled the testimony out on the ground that plaintiff had attached the truck in question, and, therefore, had taken the truck out of the control of the other party and could not claim damages as a result thereof.

It is a well-settled principle that, unless a party states a proper ground of objection to testimony, the objection will not be considered on appeal.

But, furthermore, we think his Honor properly eliminated this testimony from the case, under the following principles laid down by Mr. Justice Cothran in Templeton v.Railway, 117 S.C. at page 53, 108 S.E., 363: Was there an entirely adequate explanation and correction of the error? Was the erroneous testimony identified? Was the substance of the testimony given with an explanation to the jury of the error in admitting it and a direction to erase it from their mind?

The eighth exception charges error in allowing in evidence the letter of appellant to the Carolina National Bank, wherein appellant added a postscript, inclosing the note for collection, stating that if this party does not pay this note promptly please give us the name of a live active attorney to whom we can send it for collection. We think that this note having been sent to the bank for collection, this statement in the way of a postscript was competent on the question of punitive damages, and also under the very clear opinion of Mr. Justice Blease in the case of Nettlesv. Nettles, 138 S.C. 318, 136 S.E., pages 298 and 299.

As to Exceptions 11 and 13:

The Court laid down the rule controlling the measure of damages plaintiff is entitled to in this action for conversion, in the case of Sizer Co. v. Dopson, 89 S.C. 535,72 S.E., 464, wherein Associate Justice Woods said, speaking for the Court: "In actions for conversion or for the taking and detention of personal property the general rule is that the measure of damages is the value of the property with interest thereon, and the jury may give the highest value up to the time of the trial."

In the case of Walters v. Laurens Cotton Mills, 53 10-11 S.C. 155, 31 S.E., 1, Judge Pope had this to say:

"It is now settled law that, if there is any evidence — legal evidence — tending to prove the cause of action as alleged by plaintiffs, it is not the duty of the Judge to grant a nonsuit; the issue must go to the jury."

We see no error in his Honor's charge; if appellant desired any explanation of the matters set out in the exceptions to the charge, and if, furthermore, they desired any fuller statement of the law, these matters ought to have been called to his Honor's attention at the time; failing to do so by a proper request, appellant cannot now question the same, especially when his Honor charged the law as ably and fairly as he did in this case.

We, furthermore, see no error in the failure to direct a verdict or grant a nonsuit.

It is the judgment of this Court that the exceptions be dismissed and the judgment of the lower Court be affirmed.

MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE and STABLER concur.

MR. JUSTICE CARTER did not participate.