Brittain v. . Payne
Supreme Court of North Carolina
Civil actioN, begun before a justice of the peace, and beard on appeal before Robinson, Judge presiding, at the Eall Term, 1895, of the Superior Court of Cheeok.ee County.
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Civil actioN, begun before a justice of the peace, and beard on appeal before Robinson, Judge presiding, at the Eall Term, 1895, of the Superior Court of Cheeok.ee County. The complaint was as follows : “ 1. That the plaintiff was owner of certain walnut timber in said county and state, on the lands of said defendant, sold to plaintiff by said defendant; that the defendant sold off the said walnut timber to the amount of one liuudred and sixty dollars’ worth, or thereabout, and got pay for the same. “ 2. That by reason of said sale by the said defendant of the said timber, and the receipt of…
1Opinion of the Court
Clark, J.:
Where property is tortiously taken and sold, the owner may waive the tort and maintain an action to recover the money realized from the sale by the defendant. Lumber Co. v. Brooks, 109 N. C., 698; Wall v. Williams, 91 N. C., 477. And this is clearly what the plaintiff did by his complaint in this case. Every intendment being in favor of jurisdiction, if the complaint could have been construed as being either for the tort or to recover the money received by the defendant, this being an action before the justice, the Court would construe it to be an action on the implied contract in…
2Cases cited5 opinions
- Stokes v. . TaylorSupreme Court of North Carolina · 1889
- Fulps v. . MockSupreme Court of North Carolina · 1891
- Lewis v. Albemarle & Raleigh RailroadSupreme Court of North Carolina · 1886
- Wall v. . WilliamsSupreme Court of North Carolina · 1884
- Scottish Carolina Timber & Land Co. v. BrooksSupreme Court of North Carolina · 1891
3Cited by8 opinions
- Sams v. . PriceSupreme Court of North Carolina · 1896
- Parker v. Southern Express Co.Supreme Court of North Carolina · 1903
- Higgs-Taft Furniture Co. v. ClarkSupreme Court of North Carolina · 1926
- Mitchem v. . PasourSupreme Court of North Carolina · 1917
- White v. . BoydSupreme Court of North Carolina · 1899
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