#### DAVIS BROTHERS COMPANY v. JOHN C. WALLACE and the U. S. FIDELITY AND GUARANTY COMPANY.

(Filed 25 November, 1925.)

1. Appeal and Error — Objections and Exceptions — Remand.

■Where on appeal from an inferior court some of the appellant’s exceptions have been sustained in the Superior Court, and also in the Supreme Court, resulting in a remand of the case to the initial court, the appellant may not successfully complain that all of his exceptions on his first appeal had not been passed upon.

S. Actions — Claim and Delivery — Nonsuit—Independent Actions — Damages.

Where the plaintiff has taken a voluntary nonsuit after the property had been taken in claim and delivery and therein sold, the defendant in that action may maintain an independent action for damages, against the plaintiff in the former action and- the surety on his bond, given in conformity with 0. S., 833, wherein nominal damages at least are recoverable, with actual damages for the value of the property at the time of the seizure under claim and delivery.

3. Same — Contracts—Breach—Principal and Surety — Bonds—Statutes.

Where the plaintiff after claim and delivery and sale therein of the property, has taken a voluntary nonsuit, in an independent action by the defendant against the principal therein and the surety on his bond, the question of the defendant’s ownership is material only on the issue as to the measure of damages, the burden of proof being on the plaintiff in the second- action, C. S., 580.

4. Same — -Burden of Proof.

Where the plaintiff in claim and delivery has taken a voluntary nonsuit after selling the property, the fact that the property was taken from the defendant’s possession is evidence of his ownership, and in an independent action to recover damages against the plaintiff in the former action and the surety on the claim and delivery bond, the defendant in the former action was entitled to recover-, nothing else appearing, the value of the property when taken, with interest, as damages for retention, and where the defendant alleges ownership, the burden is. on him to prove it.

5. Same — Contracts—Breach.

The failure of plaintiff to restore the property to defendant in claim and delivery, and to prosecute his action to final success, is a failure to perform the conditions that our statute requires for the delivery of the property to him, and where he has taken a voluntary nonsuit in his action without performing these conditions, the defendant, in an independent action against the principal and surety on his bond, may have the matters determined.

.-Appeal from judgment of Superior Court of Foesyth, March Term, 1925. *Schmclc, J.*

Affirmed.

*544This action was instituted in Forsyth. County Court, on 16 July, 1924, to recover damages for breach of a bond, executed by John 0. Wallace, as principal, and the U. S. Fidelity and Guaranty Company, as surety. Said bond, conditioned as required by C. S., 833, was filed by said John C. Wallace in an action commenced by him in said court on 27 May, 1921, to procure the issuance and service of a writ of claim and delivery, in said action, for an automobile in possession of Davis Brothers Company. Pursuant to said writ, the sheriff of Forsyth County took said automobile from the possession of said Davis Brothers Company, and delivered same into the possession of John 0. Wallace. Thereafter, said John C. Wallace, by virtue of a power of sale contained in a chattel mortgage executed by Leo W..Morton, sold said automobile, at public auction, and filed a report of said sale in said action. On 23 November, 1923, without notice to or consent of Davis Brothers Company, defendants in said action, said John 0. Wallace, plaintiff therein, took a voluntary nonsuit. Plaintiffs in this action allege that the fáilure of John C. Wallace to prosecute the action in which said bond was filed, was a breach of said bond, for which plaintiffs are entitled to recover damages.

Plaintiffs further allege that they were, at the time said automobile was seized by the sheriff, under the writ of claim and delivery, and are now the owners and entitled to the possession of said automobile; that notwithstanding the action, in which said bond was filed, has terminated by a judgment upon a voluntary nonsuit, John C. Wallace, principal, in said bond, has failed and refused to return said automobile to plaintiff’s obligee in said bond, but has disposed of the same; that such failure and refusal by John 0. Wallace to return said automobile to plaintiffs was a breach of said bond for which plaintiffs are entitled to recover damages.

Plaintiffs allege that the fair market value of said automobile, at time same was seized by the sheriff, was $1,100; they demand judgment that they recover of defendants said sum and interest from date of seizure as damages for the breach of said bond.

Defendants deny that there has been any breach of said bond; deny that plaintiffs were or are the owners and entitled to possession of said automobile; they allege, as a further defense, that plaintiffs are estopped to allege or claim that they are the owners of said automobile (1) by their failure to answer the verified complaint filed on 11 June, 1921, by John C. Wallace in the action in which the bond was filed; (2) by their failure to object to the sale of the automobile by John C. Wallace, on 16 July, 1921, after advertisment, under the power of sale contained in the chattel mortgage executed by Leo W. Morton to John C. Wallace, or to file exceptions to the report of said sale made to the court in said action on 18 July, 1921; and (3) by their acceptance of a check on *54527 May, 1921, given them by John 0. Wallace in payment of certain repairs to said automobile made by plaintiffs after notice of the claim of John 0. Wallace to the automobile by virtue of the chattel mortgage executed to him by Leo W. Morton on 21 March, 1921, and duly recorded on said date.

The issues submitted to the jury, with answers thereto, were as follows :

1. Were the plaintiffs the owners and entitled to the possession of the automobile described in the complaint at the time it was seized by claim and delivery in the case of John C. Wallace v. Davis Brothers Company and Leo W. Morton? Answer: No.

2. Is the plaintiff’s action barred by the statute of limitations ? Answer : No.

3. What amount of damages, if any, are the plaintiffs entitled to recover of the defendants ? Answer:.

From judgment rendered upon this verdict, plaintiffs appealed to the Superior Court of Forsyth County, assigning as errors:

First: The refusal of the court to submit issues tendered by plaintiff as follows:

1. Did defendants execute the bond as alleged in the complaint ?

2. Was there a breach of the bond as alleged in the complaint?

3. What damages, if any, are the plaintiffs entitled to recover ?

Second: The refusal of the court to instruct the jury, as requested by plaintiffs, that “the defendants are liable in this action upon the bond for the value of the car at the time of seizure on 30 May, 1921, with interest from that date until paid, unless the defendant, Wallace, had title to the car by virtue of his alleged chattel mortgage. The plaintiffs in this action being in possession at the time of the seizure in 1921, were presumptively the owners of the car and are entitled to recover its value, unless the defendant can establish that Wallace was the owner or had special property in it for which he was entitled to possession.”

Third: The refusal of the court to instruct the jury as requested, that “all allegations and proof of title in the car'in the defendant Wallace in this car are material only in mitigation of damages. Upon the issue of damages, the burden of proof is upon the defendants to establish by the greater weight of the evidence that Morton had title to the car at the time Wallace took the alleged chattel mortgage. If defendants do not so satisfy you by the greater weight of the evidence, the plaintiffs are entitled to recover the value of the car at the time of seizure, 30 May, 1921, with interest from said date.”

Plaintiffs also assigned as error, the submission of the issues appearing in the record, the refusal of the court to give other instructions as requested by the plaintiffs, and certain instructions given as appear in the ease on appeal.

*546At tbe bearing of tbe appeal, at March Term, 1925, of tbe Superior Court of Forsyth County, Judge Schenck sustained tbe assignments of error, hereinbefore stated, and remanded tbe cause to tbe Forsyth County Court for a new trial. He did not consider or pass upon other assignments of error. From bis judgment and order, both plaintiffs and defendants appealed to tbe Supreme Court.

*Ratcliff, Hudson & Ferrell for plaintiffs.*

*Raymond G. Parlcer and Richmond & Rucker for defendants.*

Connor, J.

This action is here upon appeal from tbe judgment of tbe Superior Court of Forsyth County, remanding tbe action to tbe Forsyth County Court for a new trial. It was beard in tbe Superior Court upon appeal by plaintiffs from tbe judgment of tbe county court. Tbe judge of tbe Superior Court, exercising tbe appellate jurisdiction conferred upon that court by statute (see *Chemical Co. v. Turner, ante,*471), in deference to tbe suggestion made in tbe opinion by *Stacy, C. J.,*in *Smith v. Winston-Salem,*189 N. C., 178, in bis judgment has stated separately bis rulings upon plaintiff’s assignments of error, which resulted in tbe order for a new trial. He did not consider tbe remaining assignments of error appearing in tbe case on appeal. Having sustained tbe assignments of error considered by him, as stated in tbe judgment, and thereupon ordered a new trial, be did not deem it necessary to consider or pass upon tbe remaining assignments. Plaintiffs do not and cannot complain of this. They were successful upon their appeal from tbe county court, and in this Court ask that tbe judgment of tbe Superior Court be affirmed. This Court cannot consider or pass upon assignments of error made by plaintiffs in their appeal from tbe county court, which tbe Superior Court did not consider — it is limited to tbe consideration of assignments of error upon tbe trial in tbe county court sustained by tbe Superior Court and presented to this Court by exceptions duly taken by defendants, appellants, who ask that tbe judgment of tbe Superior Court be-reversed for errors assigned.

Defendants first assign as error tbe ruling of tbe judge of tbe Superior Court sustaining plaintiff’s exceptions to tbe refusal of tbe trial court to submit tbe issues tendered by plaintiff, and to tbe issues as submitted. This assignment of error cannot be sustained. Tbe refusal of tbe trial court to submit tbe issues tendered was error, as held by tbe judge of tbe Superior Court. This is an action to recover damages for breach of a bond. Tbe issues raised by tbe pleadings and determinative of plaintiff’s right to recover involve tbe execution of tbe bond, its breach and tbe damages sustained. Tbe ownership and right of possession of tbe automobile are not in issue upon tbe pleadings, in tbe sense that such ownership and right of possession are material to tbe cause of action *547alleged in tbe complaint. It is true that the ownership of the automobile by plaintiffs at time of its seizure by the sheriff, under the writ of claim and delivery, issued upon the filing of the bond sued upon in this action, is a question of fact material to the determination of the amount of damages which plaintiffs may have sustained by a breach of the bond, as alleged in the complaint. Such ownership, however, is not determinative of the right of plaintiffs to recover in this action.

If the bond was executed by defendants and there was a breach thereof as alleged in the complaint, plaintiffs, although not the owners or entitled to the possession of the automobile at the time of its seizure, are entitled to recover at least nominal damages. 34 Cyc., 1585. *Alderman v. roesel,*(S. C.), 29 S. E., 385; *Little v. Bliss,*(Kan.), 39 Pac., 1025; *Smith v. Whiting,*100 Mass., 122.

If there was a breach of the bond as alleged in the complaint, such breach was a wrongful act, and the law infers or presumes damages arising therefrom to plaintiffs; if no actual or substantial damages are shown, the law gives nominal damages in order to determine and establish plaintiff’s right of action and thus affords a remedy for the wrong done to them by the defendants’ breach of the bond; *Bond v. Hilton,*47 N. C., 149; *Creech v. Creech,*98 N. C., 156; *Brunhild v. Potter,*107 N. C., 416; *Hutton v. Cook,*173 N. C., 496; *Cooper v. Clute,*174 N. C., 366. The allegations in the pleadings as to the ownership of the automobile are not material to plaintiff’s right to recover; the first issue submitted to the jury was not determinative of the cause of action set out in the complaint; it was therefore error to submit said issue over the objection of plaintiffs; and the judge of the Superior Court properly sustained the assignment of error based upon the exception thereto. C. S., 580 and cases cited. *Bank v. Broom Co.,*188 N. C., 508.

Defendants further assign as error the ruling of the judge of the Superior Court sustaining plaintiffs’ exception to the refusal of the trial court to give the instructions requested. See statement of case above. This assignment of error cannot be sustained. The ruling upon plaintiff’s exceptions was correct. The instructions requested should have been given upon the issue as to damages. If the plaintiffs were the owners and entitled to the possession of the automobile at the time it was taken from their possession by the sheriff, under the writ of claim and delivery, then upon a breach of the bond as alleged in the complaint, plaintiffs were entitled to recover of defendants the value of said automobile at the time of the seizure, as damages, if the same cannot now be returned by defendants. 34 Cyc., 1582 and cases cited. *Piffley v. Kendrick*(Ind.), 31 N. E., 40; *Little v. Bliss*(Kan.), 39 Pac., 1025; *Siebolt v. Konatz Saddlery Co.*(N. Dak.), 106 N. W., 564, 23 R. C. L., p. 916, sec. 81.

*548Upon tbe issue as to damages, if plaintiffs would recover more than nominal damages for tbe breach of tbe bond, as alleged, tbe burden is upon tbem to offer evidence from wbicb sucb damages may be assessed; tbe fact tbat tbe automobile was taken from tbeir possession is evidence of ownership by tbem; upon tbe judgment, dismissing tbe action, upon voluntary nonsuit, plaintiffs were entitled to an order of restitution; sucb order was not made, and defendant, John 0. "Wallace, has failed to return tbe automobile; nothing else appearing plaintiffs are entitled to recover of said defendant and tbe surety on bis bond, tbe value of said automobile when taken from tbeir possession, with interest as damages for detention. As an affirmative defense, defendants allege tbat at tbe time of tbe taking, John C. Wallace was tbe owner of said automobile, by virtue of a chattel mortgage executed to him by Leo W. Martin. Tbe burden is upon him to establish bis ownership under said mortgage as alleged by tbe greater weight of tbe evidence. *Speas v. Bank,*188 N. C., 524. Tbe damages in this action must be assessed upon the same principles and under tbe same rules as would have applied, if tbe damages bad *been*assessed in *the*action in wbicb *the writ*of claim and delivery was issued. 23 R. C. L., p. 916, sec. 81; *Washington Ice Co. v. Webster,*62 Me., 341, 16 Am. Rep., 462; *Lapp v. Ritter,*88 Fed., 108. Tbe question of ownership is material only in mitigation of damages, and not having been adjudicated in tbe former action, may in this action be considered by the jury in determining *the*amount of damages sustained by plaintiffs by breach of tbe bond. Plaintiffs are entitled to recover as actual damages only sucb sum as tbe jury may assess as compensation for loss sustained by breach of bond.

The action commenced by John C. Wallace to recover of Davis Brothers Company tbe automobile in tbeir possession, upon bis allegation of ownership, having been dismissed upon bis voluntary nonsuit, without an adjudication as to ownership, and without an order of restitution, Davis Brothers Company may maintain an independent action to recover of tbe principal, and bis surety, damages for tbe breach of. tbe bond. *Martin v. Rexford,*170 N. C., 540; *Mahoney v. Tyler,*136 N. C., 41; *Mfg. Co. v. Rhodes,*152 N. C., 637; *Manix v. Howard,*82 N. C., 125. Failure to prosecute tbe action in wbicb tbe property was taken from plaintiffs, under writ of claim and delivery, is a breach of tbe bond, entitling plaintiffs, to at least nominal damages. Failure to return tbe property to plaintiffs after judgment dismissing tbe action upon voluntary nonsuit, is a breach of tbe bond, and upon it appearing tbat tbe property cannot be returned, plaintiffs are entitled to recover of tbe principal and surety on tbe bond as actual damages, tbe value of tbe property, at tbe time of its seizure. Defendants, however, allege as an affirmative defense to tbe recovery of actual damages tbat tbe plaintiffs were not at tbe time *549o£ its seizure, and are not now owners of tbe automobile, but that defendant, John C. Wallace, was tbe owner by virtue of a chattel mortgage executed by a third person. Tbe dismissal of tbe action, upon voluntary nonsuit was not conclusive as to tbe title to tbe automobile, and defendants may in this action offer evidence in support of their allegation, not to defeat plaintiffs’ action, but in mitigation of actual damages which they may recover. *Gilbert v. American Surety Co.,*121 Fed., 499, 61 L. R. A., 253. Tbe burden of establishing tbe truth of this allegation by tbe greater weight of tbe evidence, is upon defendants. Where, however, there has been an adjudication that the obligee in the bond, is the owner of the property, in a judgment by default and inquiry, such adjudication is conclusive, and neither the principal nor the surety may further controvert such ownership. *Garner v. Quakenbush,*188 N. C., 180.

Many interesting questions are discussed in the briefs filed in this Court. They are not, however, presented upon this appeal. Defendants’ assignments of error cannot be sustained, and the judgment remanding the action to Forsyth County Court for new trial is

Affirmed.