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CLARK, C. J. This was an action brought before a justice. of the peace and no written pleadings were filed. The summons notifies the defendant to appear at the time and place named "to answer the complaint of plaintiffs for non-payment of the sum of $175 with interest thereon from 17 August, 1901, until paid, for breach of contract." On appeal to the Superior Court, the following issues were submitted: "Were the plaintiffs damaged by reason of the negligence of the defendant in the failure to deliver the express package in question? 2. What damages have the plaintiffs sustained ?"


The jury responded "yes" to the first issue and to the second issue "$70" whereupon the defendant excepted to the jurisdiction of the court and moved for judgment of non-suit against the plaintiffs, which motion was overruled, judgment entered for the plaintiffs upon the findings of the jury, and the defendant excepted and appealed.

There being no exception to the evidence or the charge of the court, very properly no part of them is sent up. Durham v. Railroad, 108 N. C., at p. 404; Mining Co. v. Smelting Co., 119 N. C., at p. 416. The only exception is for the refusal to non-suit after verdict. Taking this to be a motion to dismiss for want of jurisdiction, it might be made at any time, even in this court for the first time. Rule 27 and cases cited in Clark's Code (3 Ed.) p. 923. But no such defect appears on the face of the record. In the summons before the justice of the peace, the plaintiffs state their cause of action to be for "breach of contract" and the issue finding that there was a "negligent failure to deliver an express package" is on its face a breach of contract to deliver the same. Froelich v. Express Co., 67 N. C., 1. It is true the word "negligent" was surplusage, for the failure to deliver the package is a breach of the contract of carriage equally whether such failure is wilful or negligent. The only defense for

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failure to deliver would be "the act of God or the public enemy." If there was negligent failure, it would be like the breach of any other contract in which the contractor negligently failed to keep and execute its terms. There was no exception to the issue, and if there had been, the negligence was simply the manner of breaking the contract, and at the utmost it was a tort arising on contract.

"The justice's summons is a substitute for the complaint when no other complaint is filed." Cromer v. Marsha, 122 N. C., 564; Allen v. Jackson, 86 N. C., 321; Williams v. Beasley, 35 N. C., 112; Emmit v. McMillan, Ibid 7; Duffy v. Averitt, 27 N. C., 458. Here, the declaration is explicit in the summons "for breach of contract." If there had been a tort, the plaintiffs had the right to waive it and sue in contract but in Froelich v. Express Co., supra, Pearson, C. J., says the failure of a contract of a carrier to deliver is a breach of contract, and adds (on p. 4) "As the distinction between declaring in tort or in contract is a refinement abolished by the Constitution, taking it in any point of view this is a civil action founded on contract." See citations approving that case in the Annotated edition of 67 N. C. Reports.


In Bowers v. Railroad, 107 N. C., 721 the court modified that decision by holding that in such case the plaintiff may waive the contract, if he so elect and sue in tort if he set out his intention "in terms that clearly show his purpose" to do The same purpose to uphold whatever jurisdiction the plaintiff shall elect is clearly shown in all our decisions. In the late case of Sams v. Price, 119 N. C., 572 the court says: "If the complaint is so worded that under the liberal procedure of The Code it could have been construed to be either an action on an express or an implied contract (Stokes v. Taylor, 104 N. C., 394; Fulps v. Mock, 108 N. C., 601; Holden v. Warren, 118 N. C., 326) or either in tort or contract (Britton v. Payne, 118 N. C., 989; Schulhofer v. Railroad, Ibid


1096; Timber Co. v. Brooks, 109 N. C., 698; Bowers v. Railroad, 107 N. C., 721) or as a common law action or one under the statute (Roberson v. Morgan, 118 N. C., 991) the court will sustain the jurisdiction." It would be passing

strange if since the Constitution, Art. IV, Sec. 1, the courts could turn a party out of court and require him to come back again by another door to litigate exactly the same sum, upon the same facts, when he has stated his cause of action in a manner which entitles him to have a decision in the forum which he has chosen.

No error.


(Filed March 17, 1903.)

CORPORATIONS-Insolvency-Judgment Creditors-Preferences.

A judgment against an insolvent corporation for money had and received merely establishes the debt and does not give the judgment creditor preference over other creditors.

ACTION by B. R. Lacy, State Treasurer, against the Clinton Loan Association, heard by Judge H. R. Bryan, at Chambers, Jan. 30, 1903, in WAKE County. From an order made upon a petition filed by W. A. Dunn, who had been appointed receiver of the defendant, asking to be instructed by the Court, to which petition A. F. Johnson filed an answer, defendant appealed.

Junius Davis, Rountree & Carr and H. E. Faison, for the plaintiff.

J. L. Stewart and Geo. E. Butler, for the stockholders. W. A. Dunn, for the defendant.

CLARK, C. J. The Clinton Loan Association was a joint stock company doing a banking business from 1871 to 1891. It became incorporated by the same name 14 Feb'y, 1891, turning over its assets, charged with its liability of course, to


the latter, and most of its members becoming stockholders in the corporation. It was insolvent, and the new corporation was another instance of what Mr. Justice Douglas styled "congenital insolvency" in Insurance Co. v. Edwards, 124 N. C., 116. In December 1891, W. A. Dunn was appointed receiver of the corporation, which included among its assets those of the former joint stock company, which had been assigned in a trust to the corporation to pay its debts, etc. The facts are set out in Bain v. Loan Association, 112 N. C., 248. As such receiver, Dunn brought an action against A. F. Johnson (two previous actions having been withdrawn) alleging that he was largely indebted to the joint stock company, which indebtedness had been assigned with all its other assets to the corporation of which Dunn was receiver. On 6 June, 1891, after the assignment of the assets of the joint stock company to the corporation, A. F. Johnson paid to W. A. Johnson, at that date cashier of the corporation (and who had been cashier to the defunct joint stock company) the sum of $2, 039.17, taking the following receipt: "$2,039.17.—Received of A. F. Johnson Two Thousand and Thirty-nine dollars and seventeen cents in checks (describing them) which checks are to be applied to credit of his private account with Clinton Loan Association, without in any way his acknowledging the correctness of the same as it appears on the ledger and without prejudice. William A. Johnson, Cashier.' By the ledger of the defunct joint stock company, it appeared that A. F. Johnson was then indebted to said concern in the sum of $5,643.02 on notes and open book accounts, but in the last action brought against him by the receiver as aforesaid, it was ascertained that there was in fact due said A. F. Johnson $7,389.48 including aforesaid $2,039.17, and it was adjudged, confirming the report of the referee, that said $7,389.48 was "to be discharged and satisfied so far as the liability of the said W. A. Dunn as receiver and his indebted


ness as receiver is concerned, upon payment to A. F. Johnson of $2,039.17 with interest from date hereof." On appeal in that case, the judgment was affirmed by a per curiam order. 130 N. C., 742.

This is a proceeding by the receiver for instructions from the court, the stockholders and A. F. Johnson being parties. The latter contends that this $2,039.17 is a preferential claim to be paid in full and in preference to the ordinary claims of creditors, which is contested by the stock-holders and the receiver, the stockholders contending further that the $2,039.17 is an indebtedness of the joint stock company, said money being paid the corporation as its trustee. The assets of the corporation are in custodia legis to be disbursed by the receiver under the order of the court. If therefore, A. F. Johnson had brought his action against the receiver to recover a balance due him, any judgment he might have obtained in that action would only have ascertained the indebtedness, leaving the order of preference to be determined by the court in this proceeding, in which the receiver was appointed, and in which the court has custody of the funds and control of their disbursement after collection. This is no wise changed by the fact that instead of A. F. Johnson suing the receiver the receiver sued him, and this balance was set up as a counterclaim, a cross action, and a balance was ascertained to be due A. F. Johnson. The judgment of affirmation on appeal had only the same effect as the judgment in that action below, i. e. to ascertain the debt. The form of the judgment served only to indicate that $2,039.17 was an indebtedness of the corporation, the balance being the debt of the joint stock


Of the sum determined to be due A. F. Johnson, all except the $2,039.17 being due him by the joint stock company, is to be provided for in the administration of the assets and liabilities of that concern. The $2,039.17 was money paid in by

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