administrator is charged with his own personal obligation as a cash asset in hand, and he and his surety can be relieved only by establishing the fact that the administrator at the time of his appointment was hopelessly insolvent, was so during all the time of his administration, and remained in that condition up to and including the time of his final settlement. Howell v. Anderson, supra. Inasmuch as one who is administrator cannot sue himself, it is but just that he should be required to account to the estate for his individual obligation as so much cash, unless he can establish the fact of his inability to pay. This is a salutary rule, and one which meets our full approval, and is the only practical way of solving an otherwise difficult problem. Upon the question of the solvency of Johnson embraced in the fifteenth and sixteenth issues, the plaintiffs offered the statement of Johnson, dated September 21, 1897, made to defendant surety company, when he applied to it to become surety on the administration bond, to which defendants except. In it Johnson sets out the character and value of his estate over and above all liabilities, as follows: Real estate $10,000; personalty $15,000 and $10,000 notes and securities-all of which he states is unincumbered. This application was accepted by the defendant company and acted upon favorably. The fact that, after the investigation of the facts contained in the application, the company became his surety, is evidence that its officials regarded Johnson as perfectly solvent; and as to Johnson, it is elementary that the statement is evidence against him. The number of docketed judgments in Johnson's favor offered by plaintiffs was competent along with evidence of the extent and value of his estate. The fact that some of them were worthless goes to the value of the evidence, and not to its competency. As these issues relating to insolvency have a most important bearing upon the liability of defendant company for a considerable part of the judgment rendered, we have examined the evidence and exceptions relating thereto with care. There are so many of them that we will confine ourselves to saying that we find in the rulings of his honor on them no reversible error-nothing which would justify us in ordering a new trial. The evidence fully warrants the finding of the referees and of the jury that Johnson was amply solvent when he qualified as administrator.

It

The ninth item of dispute relates to dividends and interest received by Johnson. is admitted that its disposition depends upon the disposition made of "said items" in dispute. We hold that Johnson has been properly charged with all the disputed items except the eighth, being itemized as "Cash in some bank, $2,800." We are unable to find any definite evidence to support this charge, and we therefore sustain that exception.

In regard to the contention that the penalty of the administration bond does not bear

interest, we fail to see that any such ruling has been made by his honor. The amount of the recovery against the administrator personally exceeds the penalty, and therefore the judgment against the defendant company is for the full penal sum of the bond, and for no more. This penalty bond is then merged in the judgment, and it is the latter which bears interest from the date of its rendition until paid.

The defendants except because his honor neglected to consider their prayers for instruction-10 in number. The judge made the following indorsement on them: "Prayer of Defendants for Special Instructions. The evidence in this case closed one evening about 5:30, the jury was excused from the courtroom until morning. The defendants in apt time requested the court to put its charge in writing, and read same to the jury. An argument of one-half hour was made to the court upon the issues. Court adjourned till morning, and when convened defendants handed up the inclosed special instructions. The court reduced its charge to writing, and has not had time to examine the special instructions, and therefore does not give them, except as they appear given in the written charge, which consumed court's entire time allotted for work and sleep." The requests for instructions were handed up in apt time, and it was error in his honor not to consider them. Craddock v. Barnes, 142 N. C. 89, 54 S. E. 1003. If necessary, the judge should adjourn court in order to weigh and consider the prayers for instruction. We have carefully examined the charge, however, and find that his honor gave very full and clear instructions upon almost every phase of the case, and gave defendants all they were entitled to. We find no error in the charge of which either party has just cause to complain.

The demurrer interposed by defendant Johnson individually to the complaint does not seem to have been passed upon at any time by the court. If it were meritorious, which we fail to see, it was waived by both defendants filing an answer before the demurrer had been acted upon. Ransom v. McClees, 64 N. C. 17; Clark's Code (3d Ed.) § 242.

Upon consideration of the whole case, we are of opinion that it has been ably and fairly tried, and that there is no error, except as to the eighth item of dispute, $2,800. This should be deducted from the judgment of $36,768.74 rendered against defendant Johnson, and, with that deduction, the judgment against him is affirmed. The judgment for $30,000 against the defendant the United States Fidelity & Guaranty Company is not affected by such error, and that judgment is affirmed. We direct that all the costs of this court on the defendants' appeal be taxed against defendants, Johnson and the United States Fidelity & Guaranty Company. Affirmed.

(144 N. C. 277)

MOSELEY et al. v. JOHNSON et al. (Supreme Court of North Carolina. April 30, 1907.)

JUDGMENT-RES JUDICATA.

In an action for the settlement of an estate, where a distributee was brought in and admitted an assignment of his interest, if he desired to contest such assignment, he should have done it before the referee or the superior court, and, where he took no exceptions to the ruling of the judgment of the superior court, he was bound by its action.

On motion to make additional party de fendant and to reform judgment of the superior court. Denied.

For former opinion, see 56 S. E. 922.

M. L. John and Stevens, Beasley & Weeks, for the motion. F. R. Cooper and A. C. Davis, opposed.

BROWN, J. Since the opinion of this court was handed down in these appeals, Howard Peden moves the court to permit him to be made a party defendant and to reform the judgment of the superior court, which has been affirmed, so that the judgment will declare that the distributive share of Howard Peden as set down in the record is subject to a payment of $1,000 by A. C. Davis, attorney for the United States Fidelity & Guaranty Company, and that said distribu: tive share is the property of said Peden, and not of said Davis. We see no merit in this motion. Howard Peden is a defendant in this action, and W. M. Peden a plaintiff. It is is stated in the record that "it is admitted that A. C. Davis is the owner by assignment of the claims and demands of Howard Peden and W. M. Peden against W. A. Johnson, administrator in this action; and the defendants move that said A. C. Davis be made a party defendant and allowed to file an answer setting up his rights." The referees undertook to allow a nonsult as to W. M. Peden, and a nol. pros. as to the defendant Howard Peden, and refused to allow Davis to be made a party. As it is an action for the settlement of an estate, the action of the referees was erroneous, and his honor very properly reversed their ruling. Davis was brought in, and set up and established his claim to the ownership of the distributive shares of the two above-named Pedens. Howard Peden admitted in his testimony that the assignment was made to Davis individually. If he desired to contest the assignment of it to Davis, he should have done so before the referees or the superior court, when he had an opportunity. He took no exception to the ruling or judgment of the superior court, and he is now bound by its action. He voluntarily assigned his share to Davis, and permitted him to come in and take his place. It is now too late for either of the two Pedens to complain.

Motion denied.

Under a contract called a lease, one of the parties agreed to hire from the other for a definite period a piano, and to pay as security for the contract a certain sum down and, as rent, a certain sum each month, and to return the piano at the end of the period in as good condition as reasonable use would permit; and it was agreed that upon the failure to pay any installment of rent, or upon the removal of the property from his residence, the security money should be retained as damages for the breach, and the owner should have the right to take possession of the piano without demand or notice. It was further agreed that if the installments of rent were paid as they fell due, the party paying the same should, while the lease continued in force, have the right to purchase the piano at an agreed price, all sums paid as security or as rent to be deducted from that price. Held, a conditional sale and not a bailment for hire.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, §§ 1325, 1327, 1328.]

2. ELECTION OF REMEDIES-ACTS CONSTITUTING ELECTION.

Where, in an action for the balance due on the price of a piano, and to sell the same in satisfaction thereof, brought after the last installment was due, the defendant asked that he be permitted to return the property to the plaintiff and be discharged from further liability, and moved for judgment as prayed in his answer, which was denied, he was not thereafter estopped to ask to redeem the property, since the election to treat the contract as a bailment for hire to be effective must have been made before the time for payment of the last installment, and neither the plaintiff nor the court accepted the defendant's offer to elect. Appeal from Superior Court, Moore County; Councill, Judge.

Action by S. Hamilton against R. V. Hilands. From a judgment for plaintiff, defendant appeals. Modified.

The plaintiff alleges in his complaint that on June 5, 1901, he entered into a written contract with the defendant, marked Exhibit A, which is called a lease, and by which the defendant agreed to "hire to the use" of the plaintiff for 19 months a piano with stool and scarf, and to pay as security for the performance of the contract $50 down, and as rent $15 on the 15th day of each month, except the last for which it was $10, the payments to begin with July 15, 1901, and further, to return the piano at the end of the time in as good condition as reasonable wear and use will permit. If the defendant failed to pay any installment of rent, the same is to bear interest from maturity, and upon said failure, or upon the removal of the property from the defendant's residence, the security money to be retained as damages for the breach of the contract, and the plaintiff. in addition, to have the right to take possession of the piano without demand or notice. It was further agreed that if the defendant paid the installments of rent as they fell due,

56 S.E.-59

he should have the right to purchase the piano for $330 (the total amount of the security money and installments), in which case, all sums paid as security or as rent should be deducted from that amount. A similar contract was made on July 15, 1901, in regard to an angelus, and described as Exhibit B, the security money being the same, and the installments of rent $10 per month for 22 months from August 15, 1901, and $5 for the twenty-third month, making $275 in all. The plaintiff further alleges that he "leased and delivered conditionally" to the defendant the said instruments, and the latter promised to pay for the same $605 in security money and installments as aforesaid, and that the piano and angelus were reasonably worth said amounts; that the contracts as contained in Exhibits A and B were taken as security for the payment of the several amounts agreed to be paid by the defendant, the plaintiff retaining the title "until the entire purchase price should be paid," with the right to take possession of the property in case of default; that defendant has paid in security money and installments on the piano $155, and on the angelus $140; and that there is now due "on the purchase price of the said instruments the sum of $346.17. The plaintiff then demands judgment, first, for $346.17 and interest; second, for the possession of the property; and third, for a sale of the same, the proceeds to be applied to the payment of the debt due to him, and the costs and expense and the surplus to be paid to the defendant. The defendant answered, and admitted all of the material allegations of the complaint, except as to the balance due on the contracts. He then prayed that he be permitted to deliver the property to the plaintiff and be discharged from further liability, forfeiting, of course, the amount he had paid. Before the jury was impaneled the defendant moved for judgment as prayed in his answer, and the court reserved decision on the motion until after verdict, when it was overruled, though the court held at the time the motion was made that the contracts as contained in Exhibits A and B were leases and not conditional sales or mortgages. The jury found, in response to the first three issues submitted, that the contracts had been executed, and the amounts paid thereon as stated in the complaint; to the fourth and sixth, that the piano, at the time of seizure by the sheriff, was worth $275 and the angelus $200; to the fifth and seventh, that there had been no damage to the property by deterioration or detention; and to the eighth issue, that the plaintiff is the owner and entitled to the possession of the property. The evidence in the case was not different in substance from the allegations of the complaint, except that one witness testified that the piano at the date of the contracts was worth $375 and the angelus $275, or a total of $650, and that at the time of the seizure they were worth

the amounts stated in the verdict. After the verdict was returned, and his motion that he be allowed to surrender the property and be discharged, had been overruled, the defendant moved that judgment be rendered according to the prayer of the complaint, treating the contracts as conditional sales or mortgages. The court held that it was too late for the defendant to make that election and overruled the motion, holding again that the contracts were leases. It was thereupon adjudged that the plaintiff recover of the defendant the sum of $1,299.37, of which $1,135 (the total of all overdue installments) is principal and $164.37 is interest, with interest on the principal until paid, and further that he recover the possession of the property (the piano and angelus), and if, for any reason, it cannot be had, then the sum of $475, the assessed value of the property, with interest on the same and also the costs.

At the time of bringing this action, the plaintiff caused the piano and angelus to be seized under claim and delivery proceedings. The defendant replevied and now has possession of the property. From the judgment the defendant, having duly excepted to the rulings of the court, appealed.

R. L. Burns, for appellant. U. L. Spence and John W. Hinsdale, Jr., for appellee.

WALKER, J. (after stating the case). This case has some peculiar features. The plaintiff has recovered a sum of money greatly in excess of the value of the property involved, and, in the second place, the judgment is directly contrary to his own theory of his rights, as stated in the complaint. A demand so extortionate as the one he now makes should not receive any favor from the court, nor should the judgment recognizing and enforcing it be permitted to stand for one moment, unless the law most clearly sanctions it and imperatively requires that it should be upheld. We are fully convinced that it does not, for it looks to the real intention of the parties and construes their contract accordingly, without much, if any, regard to the name by which it is designated, or to the particular language employed. It seeks to do equity and avoid oppression. motive is justice and not generosity. lows that the courts in determining whether or not a contract is one of bailment, or one of sale with an attempt to retain a lien for the price, or in effect a mortgage, do not consider what description the parties have given to it, but what is its essential character. It was a mere subterfuge to call this transaction a lease, and the application of that term to it in the written agreement of the parties does not in the law change its real meaning. A contract like the one upon which this suit was brought has been held by a very large majority of the courts of this country to be. in substance, a conditional sale, although in the form of a lease (and so called) or of a

Its

It fol

The

bailment for use with an option to purchase. 6 Am. & Eng. Enc. (2d Ed.) 447, and note 6. Special reference is made to the following cases as being directly in point. Baldwin v. Van Wagner, 33 W. Va. 293, 10 S. E. 716; Kimball v. Post, 44 Wis. 471; Murch v. Wright, 46 Ill. 487, 95 Am. Dec. 455; Ott v. Sweatman, 166 Pa. 217, 31 Atl. 102. This court has steadily adhered to this just and equitable construction of such contracts. Puffer v. Lucas, 112 N. C. 377, 17 S. E. 174, 19 L. R. A. 682; Crinkley v. Egerton, 113 N. C. 444, 18 S. E. 669; Clark v. Hill, 117 N. C. 11, 23 S. E. 91, 53 Am. St. Rep. 574; Barrington v. Skinner, 117 N. C. 47, 23 S. E. 90; Manufacturing Co. v. Gray, 121 N. C. 168, 28 S. E. 257; Thomas v. Cooksey, 130 N. C. 148, 41 S. E. 2; Wilcox v. Cherry, 123 N. C. 79, 31 S. E. 369. In the case last cited, at pages 82 and 83 of 123 N. C., page 370 of 31 S. E., it is said: "We are satisfied from a bare inspection of the paper itself that it was intended to be a conditional sale, and was put in the form of a lease to avoid the registration laws, or possibly to work an unjust forfeiture, neither of which can meet our approval. Both are frauds in law. common intent was evidently a sale of the machinery in such a way as to secure the purchase money. This seems evident to us from the face of the instrument itself, even if we exclude all testimony. We cannot imagine that a business man of common sense would rent property upon exactly the same terms upon which he could buy it, and we do not find any rule of interpretation which requires us to place upon a contract a construction which would indicate that at least one of the contracting parties was mentally incapable of contracting.". And in Hervey v. Locomotive Works, 93 U. S. 664, 23 L. Ed. 1003, the principle is thus stated: "The transaction (is not) changed by the agreement assuming the form of a lease. In determining the real character of a contract, courts will always look to its purpose rather than to the name given to it by the parties." A similar contract was held in Thomas v. Cooksey, supra, to be a conditional sale, although it did not expressly confer any right to purchase. If the contract between the parties, as expressed in the writing, be substantially one of conditional sale, the fact that the purchase money is denominated as "hire" or as "rent," and divided into sums payable at various periods throughout the term of credit, will not render the transaction one of bailment for hire, so as to subject it to the law of bailments instead of the law of conditional sales or mortgages. Cottrell v. Bank, 89 Ga. 508, 15 S. E. 944. contract described in the pleadings is substantially like the one which was construed in Wilcox v. Cherry, and we hold now, as was held then, that it was clearly intended to be a conditional sale. This being so, the case of Puffer v. Lucas, supra, is direct au

The

thority for holding that the defendant has the right to redeem the property by paying the amount due with interest and costs, and in default of such payment to have the property sold and the proceeds applied to the payment of the debt and interest thereon and the costs, and the surplus, if any, paid to him, thus treating the contract as, in equity, a mortgage. Whether it be considered as a contract of sale with a clause of forfeiture or defeasance, a mortgage, or a conditional sale, the proper relief is that demanded by the plaintiff upon the allegations of his complaint, by which it is properly construed as giving the defendant the right to redeem.

But it is contended by the plaintiff's counsel that the defendant had the right to elect to treat the contract as a lease, and to terminate it or to avail himself of the forfeiture at any time by surrendering the property and refusing to pay the installments (Puffer v. Baker, 104 N. C. 148, 10 S. E. 254; Puffer v. Lucas, 112 N. C. 377, 17 S. E. 174, 19 L. R. A. 682); that he had elected to do so in this case, and was bound by that election so that he could not now ask to redeem. The answer to this contention is that the election had to be made before the full time for payment of the installments had expired (Puffer v. Baker, supra), and it was not in fact made until after the expiration of that time, nor until the answer in this case was filed. Besides, the court did not grant the motion by which the election is said to have been made, nor did the plaintiff accept the proposition contained therein that the defendant be permitted to surrender the property and lose what he had paid, and then be discharged from any further liability. On the contrary, the court submitted issues which were framed upon a theory of liability quite different from that by which the defendant proposed to settle the case, and which went far beyond it. It cannot fairly be argued that he should be estopped by his election to treat the contract as a lease, without considering the other branch of his offer, namely, that he be released from further liability upon surrendering the property and giving up to the plaintiff what he had already paid The two must be coupled and taken together. But neither the plaintiff nor the court accepted his offer, and therefore there was no binding election. It would indeed be hard measure to hold him estopped by a rejected offer. The verdict of the jury in its essential features is not unlike that in Puffer v. Lucas, supra, and the same relief should be awarded in this as was awarded in that case There is this difference between the cases which is in favor of the defendant, that in Puffer v. Lucas the plaintiff sued for the pos session of the property, treating the contract as a lease, while in this case the plaintiff asks for a foreclosure, treating the contract as a mortgage. We are therefore giving him precisely the relief he has demanded

and according to his own construction of the contract, as will appear from the allegations and prayer of his complaint.

We find, in considering this case and the authorities bearing upon it, that Foreman v. Drake, 98 N. C. 311, 3 S. E. 842, has been overruled, so far as it is in conflict with the cases we have cited. Wilcox v. Cherry, 123 N. O. 79, 31 S. E. 369; Thomas v. Cooksey, 130 N. C. 148, 41 S E. 2. In connection with the citation of that case it may be well to add that we do not mean to imply by what we have said that parties when acting in good faith cannot make a valid lease with an option in the lessee to purchase. WilCox v. Cherry, supra. The form of the contract must not, though, be used merely as a cloak or cover to conceal the real nature of the transaction, which will always be determined by the court according to the intent of the parties to be gathered from their language or by what they really meant.

The jury have found that there has been "no damage to the property by detention or de terioration," that is, that there has been none for which the defendant is liable. Apart from this finding, there is no material fact found by the jury which is not admitted in the pleadings. The admitted facts of a case are of course not issuable. The value of the property at the time of the seizure by the sheriff, in the view we take of the case, becomes immaterial. The eighth issue embodied a question of law or rather a conclusion of law from the admitted facts. The verdict does not, therefore, stand in the way of the relief to be administered, but may be considered with the facts admitted.

Our conclusion is that the property be sold by order of the court below, and out of the proceeds there be paid the costs and expenses and the balance of the debt due by the defendant, that is, the purchase money specified in the contracts ($605), less the payments thereon. The surplus will be paid to the defendant. If there is any deficiency, judgment will be entered against the defendant for it. Puffer v. Lucas, supra. Whatever damage the plaintiff may have suffered from the detention or deterioration of the property since the time to which the verdict relates, and for which the defendant is liable, may be recovered by him upon the bond given by the defendant. The plaintiff may have process issued to put him in possession of the property, if he desires it and thinks it will avail him anything, as he is entitled to the possession whether the contracts are conditional sales or mortgages, the term of credit having expired. Moore v. Hurtt, 124 N. C. 27, 32 S. E. 317; Hinson v. Smith, 118 N. C. 503, 24 S. E. 541; Kiser v. Blanton, 123 N. C. 400, 31 S. E 878. But whether he or the defendant has the possession, the property must be delivered, on demand, to the commissioner appointed by the court to sell it.

Let the judgment of the superior court be

Revisal 1905, § 1467, provides that no process or other proceeding before a justice shall be quashed for the want of form; and that the court in which any such action shall be pending shall have power to amend any warrant, process, etc., either in form or substance, for the furtherance of justice. In an action in a justice's court to recover the penalty for the failure to transport freight within a reasonable time, as allowed by Revisal 1905, § 2632, the warrant and complaint simply alleged that the claim was "due by penalty." Held, that an amendment to show the section of the Code under which the penalty was claimed was properly allowed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 31, Justices of the Peace, §§ 328-330.] 2. CARRIERS-CARRIAGE OF GOODS-REGULATION-TIME FOR SHIPMENT-POLICE POWER.

Revisal 1905, § 2632, declares that it shall be unlawful for any railroad company to neglect to transport within a reasonable time any goods received for shipment and billed to or from any place in the state, unless otherwise agreed between the parties or unless the same be destroyed, under a penalty. It is further provided that the company shall be deemed to have transported the goods in a reasonable time if it has done so within the ordinary time required for such transportation, and that a delay of two days at the initial point, and 48 hours at one intermediate point for each 100 miles or fraction over which goods are to be transported, shall be held to be prima facie reasonable, and a failure to transport within such time shall be held prima facie unreasonable. Held, that the statute was a legitimate exercise of the police power of the state, and reasonable in its provisions. 3. CARRIERS

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CARRIAGE OF GOODS ACTIONS FOR DELAY-AGGRIEVED PARTY.

Revisal 1905, § 2632, declares that it shall be unlawful for any railroad company to neglect to transport freight within a reasonable time to or from any place in the state, and for a violation of the duty imposed a penalty is given "to the party aggrieved." In an action to recover the penalty by the consignors of a shipment of hay, one of the plaintiffs testified that the consignees were anxious for the hay, and that they paid in full for it after delivery. Held, that the consignees, and not the consignors, were the parties aggrieved, within the statute, and that the consignors were without right to sue for the delay.

Clark, C. J., dissenting in part.

Appeal from Superior Court, New Hanover County; E. B. Jones, Judge.

Action by B. O. Stone & Co. against the Atlantic Coast Line Railway Company. From a judgment for plaintiff, defendant appeals. Reversed, and judgment directed.

This was an action prosecuted by the plaintiffs for the recovery of the penalty incurred by defendant for failure to transport freight within a reasonable time, pursuant