RICHARDSON v. EXPRESS COMPANY. G. T. RICHARDSON v. SOUTHERN EXPRESS COMPANY. (Filed 29 September, 1909.) Appeal and Error-Fragmentary Appeal-Appeal Dismissed. An appeal from a judgment on an agreement that if negligence on certain issues be found for plaintiff a referee shall be appointed to assess the damages, is premature and will be dismissed, when the issues are thus found but the amount of damages has not been ascertained or adjudged; and this rule is adhered to in this case, though both parties request a decision. APPEAL from Cooke, J., May Term, 1909, of CRAVEN. The plaintiff sued the defendant in the Superior Court to recover $120 damages to forty-three crates of strawberries, and alleged: "4. That the defendant company negligently failed to have a messenger or other agent at said point (Clark's Station, on the Atlantic and North Carolina Railroad, where a branch road runs to Richlands) to receive said berries, and negligently and wrongfully, in breach of said contract, aforesaid, failed to receive said berries for shipment, and a part of said berries were badly damaged and became a total loss," etc. The defendant denied its liability to the plaintiff, and alleged that the Superior Court had no original jurisdiction. Without objection, and as determinative of the matters involved, the following issues were submitted, with the following stipulation, signed by counsel for plaintiff and defendant: "It is hereby stipulated and agreed that the following issues may be first tried and determined, to-wit: "1. Did plaintiff and defendant contract as alleged? Answer. "2. Did plaintiff perform the contract on his part? Answer. "3. Did defendant wrongfully and negligently break said contract, as alleged? Answer. If these three issues shall be answered in favor of the plaintiff, then the question of damages may be referred to some person agreed upon by the parties or their counsel, if they can agree; if not, then to some person to be appointed by the court." The following judgment was signed upon the verdict: "This cause coming on to be heard before his Honor, C. M. Cooke, Judge, and a jury, and it appearing to the court that the parties hereby stipulated and agreed that the jury might answer the following issues, to-wit: "1. Did plaintiff and defendant contract as alleged? "2. Did plaintiff perform the contract as alleged? "3. Did defendant wrongfully and negligently break said contract, as alleged? RICHARDSON v. EXPRESS COMPANY. "And if the jury should answer these issues in favor of the plaintiff, the question of damages should be referred to some person agreed upon by the parties, if they could agree; if not, then to some person to be appointed by the court. "And the jury having answered the first issue 'Yes,' the second issue 'Yes,' and the third issue 'Yes,' and the parties having agreed upon referee to ascertain the damage: "It is now considered and adjudged that plaintiff is entitled to recover damages from defendant, and that Thomas D. Warren is appointed referee to hear the evidence as to damage and report his findings of fact and conclusions of law thereon to the court. "It is further adjudged that plaintiff recover his costs. And this cause is retained." The defendant excepted and appealed. D. L. Ward and E. M. Green for plaintiff. MANNING, J., after stating the case: Under the decision of this Court in Moore v. Lumber Co., 150 N. C., 261, this appeal must be dismissed, for an appeal will not lie from an interlocutory or a partial judgment of this character. The damages should have been assessed either by the jury or by the referee appointed by the court. If by the referee, he should have reported to the court, when a final judgment should have been rendered, and from which the defendant, having entered and reserved his exceptions taken during the trial, could have prosecuted its appeal. This Court has uniformly enforced this rule of practice. Rogerson v. Lumber Co., 136 N. C., 266. While the counsel of both parties expressed their desire that this Court should pass upon the other questions presented by this appeal, we prefer to adhere to the rule enunciated in Hinton v. Ins. Co., 116 N. C., 22, and Milling Co. v. Finlay, 110 N. C., 411, to pass only upon the questions decisive of the appeal. In this case especially do we perceive no urgent reason for departing from this rule, as none of the evidence and no part of the judge's charge is sent up, and we cannot see how fully the facts upon which the other question presented to us depends were developed. Upon the authority cited, the appeal is dismissed as premature. Appeal dismissed. Cox . LIGHTING COMPANY. J. M. COX v. NEW BERN LIGHTING AND FUEL COMPANY. (Filed 29 September, 1909.) 1. Mortgagor and Mortgagee-Realty, Chattels Annexed-LiensPriorities. The mortgagee of the realty has no superior lien on chattels subsequently annexed thereto, subject, at the time, to a mortgage lien for the purchase price of the chattels, as the senior mortgagee could acquire no title superior to that of the mortgagor, whether claimed by him under the terms of the mortgage or by reason of its annexation to the realty. 2. Same-Notice. The question of notice to a mortgagee of the realty of the subsequent annexation thereto of chattels under an existing mortgage or conditional sale, is not determinative of his superior right, or important in fixing the rights of the respective mortgagees. 3. Mortgagor and Mortgagee-Realty, Chattels Annexed-LiensPriorities-Intent-Evidence. By adding to or substituting new or additional machinery in a manufacturing plant, mortgaged at the time to secure the purchase price, and annexing it to the realty, the intent of the purchaser is evidenced thereby that such machinery is to retain its character as personalty, regardless of the manner in which it may have been annexed to the freehold. 4. Same. A mortgagor of the realty cannot annex thereto personal property, so as to become a part thereof, and thereafter change its character as such, by his convention with a stranger, so as to conclude the rights of a prior mortgagee. 5. Mortgagor and Mortgagee-Realty, Chattels Annexed-LiensPriorities-Equity-Relief. When it appears that the rights of a mortgagee of the realty will be impaired by the preservation of the rights of the mortgagee of personal property subsequently affixed and made a part of the freehold, the chattel mortgage being for the balance of the purchase price, the impairment being by reason of substitution of additional machinery in a manufacturing plant, the old machinery having been dissipated or being in such condition that its restoration would cause the expenditure of a material sum of money, the rights of the respective mortgagees should be adjusted upon sound and just equitable principles. 6. Same-Evidence Required. In the adjustment of the rights and equities between a mortgagee of a manufacturing plant and a subsequent mortgagee of chattels having his lien at the time of annexation, the machinery annexed to the freehold replacing that embraced in the prior mortgage, the finding of the referee as to the value of the plant and of the substituted machinery are not sufficient upon which to render judgment, as it was necessary to find the value of the Cox v. LIGHTING COMPANY, plant at the time of the annexation and whether or not it was increased or diminished by the changes made. 7. Mortgagor and Mortgagee-Subsequent Mortgage-Delay in Registration-Rights Unaffected. The delay in registering a mortgage of machinery annexed to the freehold, upon which there was a senior mortgage, does not affect the priority of the liens as between the mortgagees, when it does not appear that the rights of the senior mortgagees were in any way prejudiced. APPEAL from 0. H. Allen, J., November Term, 1908, of CRA VEN. The plaintiff, being a stockholder of the New Bern Lighting and Fuel Company, hereinafter called the gas company, a corporation, instituted this action in behalf of himself and all creditors of the corporation, alleging the insolvency of the defendant corporation. Upon the demand of the plaintiff, a receiver was appointed to wind up its affairs. The court directed the receiver to advertise for claims against the defendant, and authorized and directed said receiver to determine the priority of all claims which were contended to be encumbrances on the property of defendant. Whereupon S. W. Smallwood filed claim for $60,000, evidenced by coupon bonds of the defendant and secured by a deed of trust or mortgage, duly authorized and duly executed on 30 June, 1906, and recorded 9 July, 1906, in the office of the Register of Deeds of Craven County, conveying two lots, therein described, all gas works, pipes, etc., all property of every kind, and “also the rights, easements and additions to said plant, and equipment and rights that shall be made prior to the time the said bonds are paid off or discharged." The bonds were thirty-year bonds, bearing five per cent. interest per annum, payable 1 July and 1 January of each year. The defendant defaulted in the payment of taxes, in the interest on the bonds due 1 July, 1908, and in other covenants specified in its deed. On 23 March, 1907, after the registration of the mortgage to secure its bonds, the defendant entered into a written agreement with the Empire Gas, Improvement and Construction Company, which we will designate as the Empire Company, by which the Empire Company agreed to furnish certain specifically described apparatus used for the manufacture of gas, and to erect the same in defendant's plant, for the sum of $3,500, $1,750 of which to be paid when materials were delivered and the remainder to be paid within six months after completion of the work, the note evidencing the deferred payment was executed 1 September, 1907, at six months. It was stipulated in said contract as follows: "It is further understood and agreed by the parties hereto, Cox . LIGHTING COMPANY. anything to the contrary notwithstanding, that the apparatus mentioned in the annexed specifications is to remain the property of the party of the first part until all the amounts specified herein to be paid by the party of the second part are paid to the party of the first part. If such payment or payments are not made, as herein provided, by the party of the second part, the party of the first part shall have the right to enter the premises and plant of the party of the second part and remove the apparatus," etc. This conditional sale agreement was registered on 9 January, 1908, in the office of the Register of Deeds of Craven County. The apparatus so purchased was installed between 23 March and September and was used thereafter by the gas company as a part of its plant. The receiver, under the order of the court, allowed the claim of Smallwood, holder of the bonds and interest thereon, and held that it was a first lien, subject only to unpaid taxes, upon all the property of the defendant, including the apparatus furnished by the Empire Company and included in its conditional-sale agreement, finding in reference thereto the following facts: Special lien claimed against the defendant corporation. Empire Gas, Improvement and Construction Company, of New York, claims title to the machinery sold by it to the defendant corporation until all payments due upon said machinery under a contract of sale shall have been fully paid. Your receiver has carefully examined this claim, and finds that the contract of sale was executed 23 March, 1907, and that the machinery was immediately shipped, delivered and installed in the defendant corporation's plant at New Bern, North Carolina, and that the last payment on it had fallen due and the defendant corporation had failed to meet the payments. The said contract of sale under which claimant claims title to the machinery was not recorded in the office of the Register of Deeds of Craven County until about 6 or 8 January, 1908. The parties to this contract sale acted without notice to the trustees of the deed of trust securing the bond, and without the consent of the said trustee, and the said deed of trust was recorded in the office of the Register of Deeds of Craven County on 30 June, 1906, and had been on record for several months before the contract of sale referred to was made. The said deed of trust securing the bonds constitute the first lien on all the property conveyed to the defendant company, and also a first lien on the rights, easements and additions to the said plant, and equipments and rights that shall be made prior to the time the said bonds are paid off and discharged. The two gas-making machines existed at the New Bern Gas Works at the time of the above |