{ "id": 8559244, "name": "CHARLES H. JENKINS & COMPANY, INC. v. THOMAS H. LEWIS", "name_abbreviation": "Charles H. Jenkins & Co. v. Lewis", "decision_date": "1963-03-20", "docket_number": "", "first_page": "86", "last_page": "90", "citations": [ { "type": "official", "cite": "259 N.C. 86" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "264 S.W. 2d 627", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1650426 ], "opinion_index": 0, "case_paths": [ "/ark/223/0164-01" ] }, { "cite": "122 P. 2d 210", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 5142984 ], "opinion_index": 0, "case_paths": [ "/ariz/59/0022-01" ] }, { "cite": "153 F. Supp. 274", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4281580 ], "opinion_index": 0, "case_paths": [ "/f-supp/153/0274-01" ] }, { "cite": "166 S.W. 2d 153", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10203992 ], "opinion_index": 0, "case_paths": [ "/sw2d/166/0153-01" ] }, { "cite": "56 Stat. 769", "category": "laws:leg_session", "reporter": "Stat.", "opinion_index": 0 }, { "cite": "54 Stat. 1178", "category": "laws:leg_session", "reporter": "Stat.", "opinion_index": 0 }, { "cite": "107 S.E. 2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "249 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621502 ], "opinion_index": 0, "case_paths": [ "/nc/249/0725-01" ] }, { "cite": "127 S.E. 2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "257 N.C. 754", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570998 ], "opinion_index": 0, "case_paths": [ "/nc/257/0754-01" ] }, { "cite": "116 S.E. 2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623928 ], "opinion_index": 0, "case_paths": [ "/nc/253/0228-01" ] }, { "cite": "254 N.C. 783", "category": "reporters:state", "reporter": "N.C.", "pin_cites": [ { "page": "785" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 563, "char_count": 11307, "ocr_confidence": 0.548, "pagerank": { "raw": 7.455635872830585e-08, "percentile": 0.444784618717153 }, "sha256": "5a9b2f20c64f389ccd756282e622db6b6750db3ff97eee79cc883f6055950464", "simhash": "1:d7990df2426df5b0", "word_count": 1871 }, "last_updated": "2023-07-14T17:55:17.750134+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CHARLES H. JENKINS & COMPANY, INC. v. THOMAS H. LEWIS." ], "opinions": [ { "text": "Bobbitt, J.\nThe order 'overruling defendant\u2019s demurrer for failure to state a cause of action was subject to immediate review only by writ of certiorari.. The purported appeal therefrom is premature. Rule 4(a), Rules of Practice in the Supreme Court, 254 N.C. 783, 785; Guinn v. Kincaid, 253 N.C. 228, 116 S.E. 2d 380. However, the question presented by defendant\u2019s demurrer is also presented by plaintiff\u2019s motion to strike.\nPlaintiff\u2019s motion to strike, although directed in part to designated allegations in the answer proper, is addressed to defendant\u2019s further answer and defense in its entirety. The sole ground of the motion is that the facts alleged by defendant do not constitute a legal defense to plaintiff\u2019s action. In substance, if not in form, plaintiff\u2019s motion (primarily) is a demurrer to defendant\u2019s further answer and defense. The 'court, in allowing plaintiff\u2019s motion to strike, in effect sustained a demurrer to defendant\u2019s alleged further answer and defense. Williams v. Hunter, 257 N.C. 754, 127 S.E. 2d 546; Mercer v. Hilliard, 249 N.C. 725, 107 S.E. 2d 554, and cases cited.\nIn the consideration of plaintiff\u2019s motion to strike, the facts alleged by defendant are deemed admitted. In substance, these facts are that the Ford car was not repossessed \u201cby action in a court of competent jurisdiction\u201d; and that, when the Ford car was repossessed, defendant was a member of the U. S. Marine Corps on overseas assignment and that such repossession was without his knowledge or consent.\nThe amended answer contains no denial of plaintiff\u2019s allegations that defendant executed the conditional sales contract (as per copy attached to the complaint) on which this action is based. Defendant alleges he was \u201cin the Marine Corps\u201d when he made \u201ca purchase and contract with the plaintiff.\u201d\nThe statutory provision on which defendant bases his further answer and defense, codified as \u00a7 531(1), 50 U.S.C.A. Appendix, provides: \u201c(1) No person who has received, or whose assignor has received, under a contract for the purchase of real or personal property, or of lease or bailment with a view to purchase of such property, a deposit or installment of the purchase price, or a deposit or installment under the contract, lease, or bailment, from a person or from the assignor of a person who, after the date of payment of such deposit or installment, has entered military service, shall exercise any right or option under such contract to rescind or terminate the contract or resume possession of the property for nonpayment of any installment thereunder due or for any other breach of the terms thereof occurring prior to or during the period of such military service, except by action in a court of competent jurisdiction.\u201d (Our italics)\nThe quoted code provision is Section 301(1) of the Soldiers\u2019 and Sailors\u2019 Civil Relief Act of 1940, 54 Stat. 1178, 1182, (hereafter referred to as the Act) as amended by the Soldiers\u2019 and Sailors\u2019 Civil Relief Act Amendments of 1942, 56 Stat. 769, 771. Originally, the section read: \u201cNo person who prior to the date of approval of this Act has received, or whose assignor has received,\u201d etc. (Our italics) It was amended in 1942 by striking out the words: \u201cprior to the date of approval of this Act.\u201d\nPrior to the 1942 Amendment, it was held the Act \u201cwas intended to protect those, in the armed service of our country, who were obligated when the Act was approved and all those who were so obligated when the Act was approved and thereafter entered the said service of their country.\u201d Commercial Credit Corporation v. Brown (Tex. Civ. App.), 166 S.W. 2d 153, where Brown, J., adds: \u201cWe do not believe that it was ever intended to assist any man who obligated himself after the Act became effective, whether he were then in the service, or thereafter inducted into the armed forces of our country.\u201d (Our italics)\nIt would seem that, by reason of the 1942 Amendment, Section 301(1) of the Act is now applicable to those who become obligated after \u201cthe date of approval\u201d of the Act but before entry into military service. This view finds support in other provisions of the Act.\nSection 302(1) of the Act as amended in 1942 is now codified as \u00a7 532(1), 50 U.S.C.A. Appendix. Originally, Section 302(1) read: \u201cThe provisions of this section shall apply only to obligations originating prior to the date of approval of this Act and secured by mortgage, trust deed, or other security in the nature of a mortgage upon real or personal property owned by a person in military service at the commencement of the period of military service and still so owned by him.\u201d (Our italics) This was amended in 1942 by striking out the words \u201coriginating prior to the date of approval of this Act and,\u201d and by inserting after the word \u201chim\u201d the following: \u201cwhich obligations originated prior to such person\u2019s period of military service.\u201d\nSection 107 of the Act as amended in 1942 is now codified as \u00a7 517, 50 U.S.C.A. Appendix. In part it provides: \u201cNothing contained in this Act 'shall prevent. . . (b) the repossession, retention, foreclosure, sale, forfeiture, or taking possession of property which is security for any obligation or which has been purchased or received under a contract, lease or bailment, pursuant to a written agreement of the parties thereto (including the person in military service concerned, or the person to whom section 106 is applicable, whether or not such person is a party to the obligation) or their assignees, executed during or after the period of military service of the person concerned or during the period specified in section 106.\u201d (Our italics)\nIn Jim\u2019s Trailer Sales v. Shutok (D.C. Pa.), 153 F. Supp. 274, the plaintiff\u2019s action was for repossession of a house trailer. In the opinion of Marsh, District Judge, this statement appears: \u201cSince the vehicle was purchased by defendant after he entered military service, it was conceded that the Soldiers\u2019 and Sailors\u2019 Civil Relief Act of 1940, Title 50 U.S.C.A. Appendix \u00a7 501 et seq., did not protect him.\u201d\nIn Twitchell v. Home Owners\u2019 Loan Corporation (Ariz.), 122 P. 2d 210, Lockwood, C.J., referring to the Act, said: \u201cIt was meant to protect the interests of those who were called to the defense of their country and who for that reason, were unable to keep up the payments upon obligations which they had incurred previous to their being called into service.\u201d (Our italics)\nIn S & C Motors v. Carden (Ark.), 264 S.W. 2d 627, cited by defendant, the plaintiff\u2019s action was for repossession of an automobile on which it held a conditional sales contract executed by the defendant. The defendant made one installment payment and thereafter entered the U. S. military service. While in military service, a new agreement providing for smaller monthly payments was entered into between the defendant and the plaintiff, but the defendant failed to make payments in accordance with the new schedule. The significant fact is that the defendant's obligation in its entirety originated before he entered military service.\nBeing of opinion that \u00a7 531, 50 U.S.C.A. Appendix, does not apply where a person then in the military service purchases an automobile and executes a conditional sales contract as security for payment of part of the purchase price, the orders (1) allowing plaintiff\u2019s motion to strike, and (2) overruling defendant\u2019s demurrer to the complaint, are affirmed.\nAffirmed.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Pritchett & Cooke for plaintiff appellee.", "Robert L. Harrell, James R. Walker, Jr., and Samuel S. Mitchell for defendant appellant." ], "corrections": "", "head_matter": "CHARLES H. JENKINS & COMPANY, INC. v. THOMAS H. LEWIS.\n(Filed 20 March 1963.)\n1. Appeal and Error \u00a7 3\u2014\nAn order overruling a demurrer is not immediately reviewable except by certiorari, and a purported appeal therefrom will be dismissed as premature. Rule of Practice im the Supreme Court No. 4(a).\n2. Same\u2014\nWhere plaintiff's motion to strike is addressed to an entire defense set up in the answer, it amounts to a demurrer to such defense, and an appeal will lie from the order allowing the motion to strike.\n3. Army and Navy\u2014\n50 \u00dc.S.C.A. 531(1) does not apply to a chattel mortgage executed by a serviceman after he has been inducted into the service.\nAppeal by defendant from Cowper, J., November 1962 Term of Beetie.\nThe hearing below was on plaintiff\u2019s motion to strike portions of defendant\u2019s amended answer, including all of the further answer and defense, and on defendant\u2019s demurrer to the complaint.\nThe action was instituted July 10,1962, to recover a deficiency judgment in the amount of $477.79 with interest thereon from February 8, 1961.\nPlaintiff alleges it sold and delivered to defendant on May 18, 1960, under conditional sales contract, a described 1959 Ford; that defendant agreed to pay as part purchase price therefor the sum of $1,950.72 in twenty-four installments of $81.28 beginning June 18, I960; that, on account of defendant\u2019s failure to pay a\u00ae provided, the car was repossessed, advertised for sale and sold; and that, after crediting the proceeds derived from said foreclosure, there remains unpaid and due plaintiff the balance for which this action is brought.\nAccording to copy attached to and made a part of the complaint, the conditional sales contract executed by defendant provided for the payment of said installments to Marsh Chevrolet Co., Inc., Aulander, N.C., for acceleration of maturity upon default in the payment of any installment, and for repossession, foreclosure and application of proceeds of sale. Under the heading, \u201cPURCHASER\u2019S STATEMENT,\u201d defendant, there designated \u201cSgt. T. H. Lewis,\u201d \u201c(f) or the purpose of obtaining credit and the purchase of a motor vehicle from Marsh Chevrolet Co., Inc.,\u201d made certain representations, including the following: He is and had been for seventeen years a member of the U. S. Marine Corps. His income is $510.00 per month. He had previously purchased a car on time from a dealer in Rich Square and had paid therefor in- full. The name of Atlantic Discount, Ahoskie, N. C., is given .as a reference. There appears on said copy of said conditional sales contract the following endorsement: \u201cTransferred without recourse to Chas. H. Jenkins & Company, Inc. Marsh Chevrolet Co. By: Wayland L. Jenkins, Jr.\u201d\nIn the amended answer, \u201cit is admitted that while a service man and while in the Marine Corps, the defendant did make a purchase and \u25a0contract with the plaintiff.\u201d As to plaintiff\u2019s allegations with reference to repossession, advertisement, sale and application of proceeds, defendant asserts he \u201chas no personal knowledge of the matters . . . and therefore denies same except as herein stated.\u201d Defendant alleges plaintiff, \u201cwithout notice to or knowledge of the defendant and without consent or authority from the defendant and while the defendant was overseas by assignment of the U. S. Marine Corps, did take possession of an automobile belonging to the defendant and did attempt to dispose of same.\u201d\nIn the allegations to which plaintiff\u2019s motion to strike is directed and also as ground for demurrer, defendant asserts the repossession of said car by plaintiff was in violation of the Soldiers\u2019 and Sailors\u2019 Civil Relief Act. The court allowed plaintiff\u2019s said motion to strike and overruled defendant\u2019s demurrer. Defendant excepted to each of these rulings and appealed.\nPritchett & Cooke for plaintiff appellee.\nRobert L. Harrell, James R. Walker, Jr., and Samuel S. Mitchell for defendant appellant." }, "file_name": "0086-01", "first_page_order": 130, "last_page_order": 134 }