State Trust Co. v. M & J FINANCE CORP.

78 S.E.2d 327 (1953) 238 N.C. 478

STATE TRUST CO.
v.
M & J FINANCE CORP. et al.

No. 162.

Supreme Court of North Carolina.

November 4, 1953.

E. L. Loftin, Asheville, for defendant-appellant.

M. F. Toms, Hendersonville, for plaintiff-appellee.

WINBORNE, Justice.

Basically the appellant, M & J Finance Company, challenges the judgment from which appeal is taken, on the ground that the court erred in answering the first and fifth issues as indicated. It invokes, and undertakes to bring its case within the well settled principle of law stated and applied in Atlantic Discount Corp. v. Young, 224 N.C. 89, 29 S.E.2d 29, that a mortgagor left in possession of goods, which in contemplation of the parties, are to be disposed of by him in the ordinary course of trade, is the agent of the mortgagee to the extent that he may pass title to the goods, sold in the usual way to a purchaser, freed of the mortgage lien, Southern R. Co. v. W. A. Simpkins Co., 178 N.C. 273, 100 S.E. 418, 10 A.L.R. 731 and recently restated in Handley Motor Co. v. Wood, 237 N.C. 318, 75 S.E.2d 312, 316, in opinion by Parker, J., in this manner: "When the owner of personal property in any form clothes another with the apparent title or power of disposition, and third parties are thereby induced to deal with him, they shall be protected", citing authorites, including Atlantic Discount Corp. v. Young, supra.

However, applying this principle, this Court is of opinion, and holds that the evidence shown in the case on appeal is too susceptible of different interpretations and inferences to require a ruling, as a matter of law, that plaintiff, by its conduct, is estopped to deny the priority of the chattel mortgage asserted by defendant M & J Finance Company,—the issue to which the fifth is directed.

The evidence, taken in the light most favorable to plaintiff, seems to make a case for a jury. While it is true that there is evidence tending to show that plaintiff had left the mortgaged automobiles in possession of Case, the mortgagor, to be disposed of in the ordinary course of trade, there is also evidence tending to show that, in the dealings between plaintiff and Case, the latter had no permission or authority to sell any automobile on which the plaintiff had a mortgage until it was paid off, nor did he have authority to collect any money for plaintiff. This raises question for fact finding.

And when the parties to a civil action waive trial by jury, as they may do, and agree that the presiding judge may find the facts in respect to the issues of fact raised by the pleadings, G.S. § 1-184, his findings of fact have the force and effect of a verdict by a jury upon the issues involved. N.C.Constitution Art. IV, § 13. And his findings of fact are conclusive on appeal, if there be evidence to support them. See Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351, where authorities are assembled. See also Briggs v. Briggs, 234 N.C. 450, 67 S.E.2d 349; Thompson v. Thompson, 235 N.C. 416, 70 S.E.2d 495; Ryan v. Wachovia Bank & Trust Co., 235 N.C. 585, 70 S.E.2d 853; Queen City Coach Co. v. Carolina Coach Co., 237 N.C. 697, 76 S.E.2d 47.

Applying this rule of practice the negative answer to the fifth issue is necessarily predicated upon a finding that Case was not vested with unrestricted power to sell the Buick automobile in question. Hence plaintiff had not waived the lien of its prior chattel mortgage. And the affirmative answer to the first issue follows as a matter of law.

Moreover, other assignments of error have been given due consideration, and, in view of the holding above, and the verdict on other issues, the matters to which such assignments of error relate become harmless.

No error.