Barbee v. . Scoggins

28 S.E. 259, 121 N.C. 135

• Court: Supreme Court of North Carolina
• Decided: September 5, 1897
• Status: Published

Opinion

Clark, J.:

The appellee’s motion to dismiss for failure-to print part of “case on appeal” must be disallowed.' As the rule requires the “case on appeal” to be printed, when other matter is referred to and ordered to be made a part of the case on appeal, the Court will not take up time debating whether such “exhibit” is material or not, the order making it a part of the case being conclusive. Barnes v. Crawford, 119 N. C., 127; Fleming v. McPhail, at this term. Here a receipt which is embraced in the “case on appeal” merely recites that it is in accordance with terms embraced in the answer but does not purport to make the answer a “part of case on appeal.” The practice as settled by the rules of Court is that those parts of the record which are required to he printed by Rule 28 (119 N. C., 940) e., the judgment, case on appeal, exceptions, and issues are per tie material, and if they are not printed in full, Rule 80 requires that the appeal shall be dismissed. But -the pleadings are not so required to be printed (except when the case comes up on a demurrer) unless material, and if they are material and not printed, the Court will not dismiss but will simply order the additional printing. Rule 82.

Rules 28, 80 and 32 set out all this so plainly (119 N. C., 940, 941, and 942) that no time ought to be lost hereafter in discussing them.

It is true that, in the absence of a stipulation to the contrary, a mortgage to secure a debt payable in installments cannot be foreclosed till default in the last payment. Brame v. Swain, 111 N. C., 540; Harshaw v. McKesson, 66 N. C., 266. But here the mortgage expressly states that upon default in any installment all were to become due and the mortgagee could “proceed to collect under the powers herein given”. McIver v. Smith, 118 N. C., 73; 2 Cobbey Mortgages, Sec. 852. The exercise of the power to declare the deferred payments due was held optional, and if not exercised did not put the statute to running (Capehart v. Detrick, 91 N. C., 344; Barbour v. White, 37 Illinois, 164, Chapin v. Whitsett, 3 Colorado, 315) but no question of that kind arises as by taking out the proceedings herein the plaintiff exercised his option. 8 Am. & Eng. Enc., 194. The mortgagor being in default on some of his installments, the mortgagee was within his right when he elected to take the goods in possession, for the $100 derived from sale of cattle, it was stipulated, were not to be credited on the weekly instalments. But there is another stipulation that, upon the payment of $350 upon the weekly instalments, the mortgage should he released upon the stock of goods, leaving it in force only as to the realty. The mortgagor tendered the plaintiff and paid into the Clerk’s office (where it has continuously remained) for his benefit on April 3, the sum of $94.00 which, added to previous payments (exclusive of the aforesaid $100 from sale of cattle) made the full sum of $350. Eo instunti the mortgage on the personalty was released, Shattuck v. Cole, 91 Mich., 580, and, the costs to that elate having also been paid into the Clerk’s office at the same time, the plaintiff' should have discontinued his action.

Even if the balance necessary to release the mortgage on the personalty had not been paid, in before the attempted sale on April 13, that sale was invalid. Alston v. Morphew, 113 N. C., 460, citing Blount v. Mitchell, 1 N. C. The goods were not in plain view but were in a store 100 to 150 yards off from the place of sale, and moreover they were sold in a lump, which was calculated to make them bring much less than their value. The mortgagor is in the power of the mortgagee and the Courts require that such sales like those made under execution shall he made with such reasonable care as shall produce the best results. McNeely v. Hart, 30 N. C., 492; Ainsworth v. Greenlee, 7 N. C., 470.

Upon the first issue the burden being upon the plaintiff and there being no evidence tending to support his contention, the Court properly directed the verdict thereon to be rendered against him. Spruill v. Insurance C., 120 N. C., 141; State v. Riley, 113 N. C., 648. The measure of damages upon the second issue was strictly the value of the goods on March 10, when the defendant first tendered the balance necessary under the terms of the mortgage to release it as to the goods seized, and plaintiff refused to release them. The' plaintiff lawfully caused them to be seized on March 6th, when there was an installment clue, hut in the absence of any evidence tending to show a depreciation in their market value during the four days between the lawful seizure and the unlawful refusal to return, it was harmless error to charge that the value should be assessed as of the date of seizure. We fail to see how the plaintiff can object to the •‘allowance of interest” on the third issue.

No error.