Fairley Bros. v. Abernathy

130 S.E. 184, 190 N.C. 494, 1925 N.C. LEXIS 110

• Court: Supreme Court of North Carolina
• Decided: November 18, 1925
• Status: Published

Opinion

AdaMS, J.

Actions for tbe recovery of personal property must-be tried in tbe county in wbieb tbe subject of tbe action, or some part thereof is situated, subject to tbe power of tbe court to change tbe place of trial in tbe cases provided by law. C. S., 463. Was tbe present action brought for tbe recovery of personal property within tbe meaning of this section ? Tbe defendant contends that it was; but tbe plaintiffs say that it was brought to enforce the' specific performance of a contract relating to personal property. Tbe nature of tbe action must be determined by tbe relation of tbe parties, their agreement, and tbe allegations in tbe complaint. Tbe contract which is dated 2 April, 1925, recites a previous sale by tbe plaintiffs (12, 16, 17 March, 1925) of sixty bales of cotton to tbe McLean Manufacturing Company, at tbe price of $7,551.35, to be paid out of proceeds to be derived from tbe sale of goods manufactured from tbe cotton, — tbe title of tbe cotton or of tbe manufactured articles to remain in tbe plaintiffs until tbe contract price was paid. In consequence of tbe manufacturing company’s failure to pay tbe price tbe parties agreed that tbe company and A. A. McLean, Jr., should bold tbe goods in process of manufacture in trust for tbe plaintiffs as their agent or consignee or trustee or bailee, for tbe purpose of completing tbe manufacture of tbe cotton into cloth and delivering tbe finished product to tbe plaintiffs or their order. Tbe relief prayed is that tbe receiver comply with tbe contract and deliver to tbe plaintiffs not tbe cotton “raw” or “partially manufactured,” but tbe cloth as tbe manufactured product. Tbe manufacture of the cotton must of course precede tbe delivery of tbe cloth; but to convert tbe raw material into cloth is only an incident in carrying out tbe main purpose of tbe contract and granting tbe chief relief demanded in tbe complaint, namely, tbe recovery of tbe cloth. If tbe cloth shall not be delivered tbe plaintiffs will not have tbe relief they ask. It is immaterial whether tbe relation between tbe parties is that of principal and agent or consignor and consignee or trustor and trustee or bailor and bailee. Their manifest purpose was to secure tbe plaintiffs by making them tbe beneficial owners of “all goods” whether manufactured or in tbe process of manufacture; and tbe plaintiffs, relying upon this claim, seek to recover tbe actual possession of tbe article in its manufactured state. Tbe manufacturing company and A. A. McLean, Jr., are alleged to be insolvent; and tbe relief sought is not tbe recovery of tbe debt and a sale of tbe property as incidental thereto, as in Piano Co. v. Newell, 177 N. C., 533, and similar cases, but tbe recovery of specific personal property, with injunctive restraint as an incident of tbe recovery. It seems to be unquestionable tbat tbis is tbe chief if not tbe sole purpose of tbe action. Tbe entire subject-matter is in Gaston County, and tbe venue, as Judge McElroy held, is fixed by C. S., 463 (4). There are several cases in which tbe apposite principle is discussed and tbe decisions are distinguished. Woodard v. Sauls, 134 N. C., 274; Brown v. Cogdell, 136 N. C., 32; Edgerton v. Games, 142 N. C., 223; Clow v. McNeill, 167 N. C., 212; Mfg. Co. v. Brower, 105 N. C., 440.

Tbe judgment is

Affirmed.