Parker v. First-Citizens Bank & Trust Co.

50 S.E.2d 304, 229 N.C. 527, 1948 N.C. LEXIS 348

• Court: Supreme Court of North Carolina
• Decided: November 24, 1948
• Status: Published

Opinion

Baknhii.l, J.

The sale of the automobile to defendant’s intestate being a cash transaction, payment of the purchase price by check constituted a conditional payment and, as between the parties, transfer of title was conditioned upon the payment of the check by the bank upon which it was drawn. As the check was dishonored and not paid, no title passed to the purchaser. The property remained the property of the plaintiffs. Hayworth v. Insurance Co., 190 N. C. 757, 130 S. E. 612, and cases cited; Dewey v. Margolis, 195 N. C. 307, 142 S. E. 22; Lumber Co. v. Hayworth, 205 N. C. 585, 172 S. E. 194; South v. Sisk, 205 N. C. 655, 172 S. E. 193; Barksdale v. Banks, 206 Ala. 569, 90 So. 913; National Bank of Commerce v. R. R., 46 N. W. 342; Lee v. Marion Nat. Bank, 166 S. E. 148, rehearing, p. 160; Thomas v. Insurance Co., 104 F. (2) 480; Ratliff v. Insurance Co., 269 S. W. 546; Alcohol Co. v. Harger, 31 A. (2) 27; Birmingham v. Rice Bros., 26 N. W. (2) 39; First National Bank v. Griffin, 120 P. 595; Clark v. Hamilton Diamond Co., 284 P. 915; Towey v. Esser, 24 P. (2) 853; Mangel v. Bank, 149 S. E. 213; 55 C. J. 579; 46 A. J. 644; Void on Sales, 167, 174; Waite on Sales, 2d Ed., 283. See also Anno., 31 A. L. R. 578 and 54 A. L. R. 526, where numerous cases are cited.

The authority of the agent of the purchaser to resell the automobile terminated at the death of his principal. Restatement of Law, Agency, sec. 120; 2 A. J. 52. Resale by him after the death of his principal constituted a conversion of plaintiffs’ property. By reason of this conversion, plaintiffs had the election of either one of two remedies. They could sue to recover the specific property or they could ratify the sale and sue to recover the proceeds thereof. 18 A. J. 163.

As the plaintiffs transferred and delivered to the purchaser the certificate of title to the automobile and thus placed him and his agent in the position of apparent owners, it may be that they are estopped to pursue the property itself and recover it from the last vendee. Be that as it may, the defendant, who merely stands in the shoes of its intestate, received the proceeds of the sale with notice and holds the fund for the use and benefit of plaintiffs. Woodbury v. Nu-Enamel Corp., 215 N. C. 790, 1 S. E. (2) 566; Porter v. Alexander, 195 N. C. 5, 141 S. E. 343; Sever v. McLaughlin, 79 N. C. 153; Towey v. Esser, supra; Birmingham, v. Rice Bros., supra; Manget v. Bank, supra; First National Bank v. Griffin, supra; Lee v. Marion Nat. Bank, supra; Nelson v. Conroy Sav. Bank, 194 N. W. 204; Lewis v. McMahon & Co., 271 S. W. 779; 53 A. J. 933; 18 A. J. 163. They having elected to sue in assumpsit for the purchase price, the defendant is liable to them in the amount received. That plaintiffs are entitled to judgment therefor is the only reasonable inference to be drawn from the evidence offered.

The fund never belonged to the deceased or his administrator. Instead, it was at all times the property of plaintiffs. Hence it cannot be charged either with the debts of the estate or the costs of administration.

The charge of the court is sustained by the record. No prejudicial error in the trial is made to appear. Hence, the judgment must be affirmed.

No error.