{
  "id": 11272217,
  "name": "AMERICAN SODA FOUNTAIN COMPANY v. O. P. SCHELL",
  "name_abbreviation": "American Soda Fountain Co. v. Schell",
  "decision_date": "1912-12-11",
  "docket_number": "",
  "first_page": "529",
  "last_page": "531",
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      "cite": "160 N.C. 529"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "147 N. C., 60",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
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    {
      "cite": "132 N. C., 248",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "86 N. C., 350",
      "category": "reporters:state",
      "reporter": "N.C.",
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  "last_updated": "2023-07-14T16:32:58.976002+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "AMERICAN SODA FOUNTAIN COMPANY v. O. P. SCHELL."
    ],
    "opinions": [
      {
        "text": "Clark, O. J.\nThis was an action for claim and delivery of a soda fountain, the plaintiff claiming title by reason of the possession of notes, reserving title to the seller, on which it alleged that there was a balance due of $871.50, with interest from April, 1909. Defendant denied plaintiff\u2019s title, alleging a breach of warranty and failure of consideration and a counterclaim for damages arising out of said breach of warranty in the sum of $2,062.84. The jury found:\n1. That the defendant was indebted to the plaintiff on account of his notes executed to the plaintiff and outstanding, $840.\n2. That plaintiff warranted the soda fountain;\n3. That it did not come up to the warranty, and\n4. That by failure of the soda fountain to come up to said warranty the defendant had sustained damages, $1,262.84;\n5. That the plaintiff was the owner and entitled to possession of the property; and\n6. That at the time of the seizure the soda fountain and fixtures were worth nothing to the defendant.\nThe court entered judgment that the plaintiff was the owner and entitled to the recovery of the property, but instead of deducting the $840 awarded the plaintiff in the first issue from the $1,262.84 awarded the defendant in the fourth issue, the court added interest on the $840, i. e., $149, making a total of $989, and entered judgment in favor of the defendants for $273.84 only. The defendant excepted and appealed.\nThe only question presented is whether upon the answer to the first issue, \u201cIn what amount, if any, is the defendant indebted to plaintiff on account of his notes now outstanding? Answer: $840,\u201d this judgment is correct.\nWe think the court erred in allowing the plaintiff $149 interest. It is true that in an amendment to the complaint the plaintiff averred that there was a balance of $871.50 due on the notes for the purchase money. It does not appear in the record that there was any denial in the answer. But presumably the alie-gation was taken as denied, because tbe first issue was submitted without objection, and tbe verdict was that tbe defendant was indebted to tbe plaintiff \u201con account of bis notes executed to tbe plaintiff and outstanding, $840.\u201d Prima, facie, tbe jury find that $840 was tbe balance due tbe plaintiff at tbe date of tbe verdict. Tbe judgment on sucb verdict should bear interest from tbe date of tbe judgment. It is not like a note that is found or admitted to be due and on which tbe interest is calculated according to tbe tenor of the note. Revisal, 1952. Here there are several notes, and tbe plaintiff averred that tbe amount due on them was $871.50, with interest from 1 April, 1909. Tbe jury did not accept that contention, but fixed tbe amount due \u201con account of tbe notes\u201d at $840, which was presumably tbe balance due, calculating interest up to date and allowing credits. If there was any doubt, bis Honor should have referred tbe matter back to tbe jury to make it plain. Revisal, 552, provides that when a \u201cverdict is found for tbe recovery of money, tbe jury must assess tbe amount of tbe recovery.\u201d\nResides, this was an action for claim and delivery, and in sucb cases interest is not allowed as a matter of law. Patapsco Co. v. Magee, 86 N. C., 350.\nTbe motion to dismiss tbe appeal because there is no assignment of error, and tbe motion to affirm because there is no case on appeal, must be denied. Tbe appeal being from tbe judgment alone, neither is necessary. R. R. v. Stewart, 132 N. C., 248; Wallace v. Salisbury, 147 N. C., 60.\nJudgment should have been entered upon tbe verdict in favor of tbe defendant for $422.84 by deducting tbe $840 found to be due to plaintiff on tbe first issue from tbe $1,262.84 found to be due tbe defendant on tbe fourth issue.\nReversed.",
        "type": "majority",
        "author": "Clark, O. J."
      }
    ],
    "attorneys": [
      "B. L. Godwin for plaintiff.",
      "J. G. Clifford, F. F. Young, and N. A^Townsend for defendant."
    ],
    "corrections": "",
    "head_matter": "AMERICAN SODA FOUNTAIN COMPANY v. O. P. SCHELL.\n(Filed 11 December, 1912.)\n1. Claim and Delivery \u2014 Judgment\u2014Interest\u2014Questions for Jury\u2014 Interpretation of Statutes \u2014 Practice.\nUnder a contract reserving title in tbe seller, tbe plaintiff: brought claim and delivery proceedings for a balance due on the purchase price and interest, and the defendant denied plaintiff\u2019s title, alleged a want of consideration, and claimed damages arising from a breach of warranty. The jury found that defendant owed the plaintiff $840 on his outstanding notes given for the purchase, and that he had been damaged by breach of plaintiff\u2019s warranty in a certain amount: Held, in proceedings of this character, interest is not allowed as a matter of law, and upon the jury\u2019s finding, the defendant was only chargeable with interest on the $840 from the date of the judgment. If the trial court had been in doubt as to verdict\u2019s bearing interest on the notes, he should have referred the matter back to the jury. Re-visa!, 582.\n2. Appeal and Error \u2014 Assignments of Error \u2014 Motions\u2014Judgments,\nIt is not necessary for the record on appeal to, contain appellant\u2019s assignments of error when the appeal is only from the judgment entered, and a motion to dismiss the appeal and to affirm the judgment of the lower court, on that account, will'be denied.\nAppeal by defendant from Wei\u00ed, J., at Special March Term, 1912, of Harnett.\nB. L. Godwin for plaintiff.\nJ. G. Clifford, F. F. Young, and N. A^Townsend for defendant."
  },
  "file_name": "0529-01",
  "first_page_order": 569,
  "last_page_order": 571
}