Western Auto Supply Co. v. Vick

268 S.E.2d 842, 47 N.C. App. 701, 1980 N.C. App. LEXIS 3182
CourtCourt of Appeals of North Carolina
DecidedAugust 5, 1980
DocketNo. 807SC58
StatusPublished

This text of 268 S.E.2d 842 (Western Auto Supply Co. v. Vick) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Western Auto Supply Co. v. Vick, 268 S.E.2d 842, 47 N.C. App. 701, 1980 N.C. App. LEXIS 3182 (N.C. Ct. App. 1980).

Opinion

WELLS, Judge.

Defendant first assigns as error two findings of fact made by the trial court on grounds that they were not supported by any evidence. The court’s findings of fact are conclusive on appeal if supported by any competent evidence, even though there may be evidence in the record to support contrary findings. Henderson County v. Osteen, 297 N.C. 113, 254 S.E. 2d 160 [707]*707(1979). However, if there is no evidence in the record to support findings to which proper exceptions have been entered, they must be set aside. See, Insurance Co. v. Lambeth, 250 N.C. 1, 108 S.E. 2d 36 (1959). The two challenged findings read as follows:

10. Without regard to whether payment for merchandise purchased by Vick from Western Auto and reflected on a “statement of account” rendered by Western Auto to Vick was made in cash or with chattel paper, the amounts for which Vick was given cash or chattel paper — equivalent credit upon his account(s) were no longer deemed by Western Auto or Vick to be owed by Vick to Western Auto for the merchandise purchases by Vick reflected in his account(s).
* * *
16. From the written agreements entered into between Western Auto and Vick and their course of dealing thereunder, which was not inconsistent therewith, it is clear that Western Auto and Vick intended and viewed the transactions between them as the purchase and sale of merchandise and the purchase and sale of chattel paper.

We find that there is no evidence in the record to support these findings. The purchase agreement entered into between the parties contained provisions requiring Vick to repurchase chattel paper upon the occurrence of certain events, to collect all the installments as they came due from the customers, and to remit all such installment payments to Western Auto whether or not they had been paid by the customers. The agreement also contains the following key provision: “The Company shall have all of the rights of the Dealer, and the Dealer shall remain liable to the Company for any deficiency on such Chattel Paper, including the Company’s reasonable expenses and attorney fees.” As to collection and remittance arrangements and practices, Vick testified:

When I sent chattel paper to Western Auto, they kept the original and sent me back a copy. Collections were made on the payments due on the paper by people coming to the store and making payments or mailing the payments in or [708]*708in some cases we’d have to go to see them to pick up the payments. Western Auto was not involved in any way with the collection of payments from my customers. Western Auto did not send out any notices of delinquencies and it did not have any representatives call on my customers and attempt to collect payments. I maintained collection records by keeping a ledger card posted up to date for each customer and I kept a separate ledger card on each contract that was sent in to Western Auto. When I collected payments from customers I noted the collections on the ledger card and put the money into a special bank account and sent it to Western Auto. If a customer didn’t pay me one month I had to make the payment for him to Western Auto. Western Auto sent me a statement each month showing all the customers and how much they owed, and that is the way we paid that. The auditors of Western Auto came around and checked my ledger cards every now and then. If they found a customer was behind over 90 days, I would have to pay the account off in full. All the auditor did was check the ledger card and call for a pay-off on certain ones if they were behind, and they checked the credit information if it was a new account.

As to the treatment of the chattel paper sent to Western Auto by Vick, Western Auto’s auditor testified as follows:

Q. Now, Mr. Gallimore, I believe in response to questions put to you by Mr. Weddington that you have said that merchandise charged to Mr. Vick’s Regular account can be paid by cash or by the chattel papers.
A. Yes, sir.
Q. And that when you got the chattel paper in that you credited his account with, his Regular account wiped it out, you said, that much of the charge.
A. Yes, sir.
Q. I believe that is what you said.
[709]*709A. Right.
Q. And I believe you said that he didn’t owe you that amount. Is that what you meant to say?
A. I said what?
Q. That as soon as he got that credited he didn’t owe it anymore.
A. That is correct. This eliminated that charge, that portion of the charge on his Regular account.
Q. Now what you mean is he didn’t owe it under that account.
A. That is correct.
Q. But he was still obligated to pay it, wasn’t he, until that chattel paper was paid out?
A. He owed the amount of the paper, yes.
Q. So that was, as you said, just a paper transaction. You credited that, and debited him somewhere else.
A. That is correct.

The factual pattern that thus emerged from the record is that to the extent Vick paid for his purchases of merchandise from Western Auto with chattel paper, Vick continued to be obligated or indebted to Western Auto for the payments reflected in the chattel paper until Vick remitted cash to Western Auto equivalent to those installments. We believe the following chart of events and transactions expresses in shorthand fashion the undisputed evidence before the trial court.

Substance of the Transactions
I. Extension of Credit and Payment of Principal
[710]*710A. Vick makes wholesale purchases from Western Auto on open credit accounts which may be collected as due on ten days notice.
B. Vick pays for the items due on account with cash or by assigning Western Auto what is in effect the installments due under the chattel paper.
C. Vick remains responsible for collecting and forwarding amounts due from individual installment debtors to Western Auto. Vick must pay to Western Auto all installments when due, whether or not the installments were paid by the individual debtors, and Vick must repurchase all chattel paper from Western Auto on accounts more than ninety days in arrears even though he has been making the payments as they became due to Western Auto.
D. Western Auto obtains a security interest in the chattel paper collateralizing Vick’s debt.
II. Forbearance
A. For the period specified in each installment contract, Western Auto refrains from collecting from Vick sums due under the contract.
III. Interest
A. As Vick pays off the deferred installment payments under the chattel paper, he is credited only with that portion of the installments attributed to principal, plus thirty or thirty-five percent of the finance charge.

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Bluebook (online)
268 S.E.2d 842, 47 N.C. App. 701, 1980 N.C. App. LEXIS 3182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/western-auto-supply-co-v-vick-ncctapp-1980.