Branch Banking & Trust Co. v. Gill, 123

• Decision Date: 31 January 1975
• Docket Number: No. 123,123
• Citation: 286 N.C. 342,211 S.E.2d 327
• Court: North Carolina Supreme Court
• Parties: , 16 UCC Rep.Serv. 1105 The BRANCH BANKING & TRUST COMPANY, Plaintiff, v. Edwin GILL, Treasurer of the State of North Carolina, et al., Defendants, and Henry L. Stevens, III, et al., Third-Party-Defendants.

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211 S.E.2d 327 286 N.C. 342, 16 UCC Rep.Serv. 1105 The BRANCH BANKING & TRUST COMPANY, Plaintiff,
v.
Edwin GILL, Treasurer of the State of North Carolina, et
al., Defendants,
and
Henry L. Stevens, III, et al., Third-Party-Defendants. No. 123. Supreme Court of North Carolina. Jan. 31, 1975.
Order Allowing Petition to Rehear April 15, 1975.

Carr, Gibbons & Cozart by L. H. Gibbons, Wilson, Johnson & Johnson by Rivers D. Johnson, Jr., Warsaw, and Dees, Dees, Smith, Powell & Jarrett by William A. Dees, Jr., Goldsboro, for Branch Banking & Trust Company.

James H. Carson, Jr., Atty. Gen., by Millard R. Rich, Jr., Asst. Atty. Gen., Manning, Fulton & Skinner by Howard E. Manning and W. Gerald Thornton, Raleigh, for Edwin Gill and W. G. Parham, Jr.

Young, Moore & Henderson by J. C. Moore, Raleigh, for Insurance Company of North America.

Purrington, Hatch & Purrington by A. L. Purrington, Jr., Raleigh, for Hartford Accident and Indemnity Company.

Corbett & Fisler by Leon H. Corbett, Burgaw, for individual defendant Woodcock.

Henry L. Stevens, III, and Vance B. Gabin, Kenansville, Receivers of Southeastern

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Grain Association, Inc., third party defendants.

[286 N.C. 354] LAKE, Justice.

The Bank's Assignments of Error Numbers 9 to 14, inclusive, are directed to the judgment of the Superior Court dismissing the action against the defendant Parham, individually. These assignments are not brought forward in the Bank's brief, no argument is made and no authorities are cited therein with reference thereto. They are, therefore, deemed abandoned, and, no error appearing on the face of the record concerning it, that judgment is affirmed. Rule 28, Rules of Practice in the Supreme Court; Capune v. Robbins, 273 N.C. 581, 590, 160 S.E.2d 881; Mathis v. Siskin, 268 N.C. 119, 150 S.E.2d 24; Strong, N.C. Index 2d, Appeal and Error, § 45.

By that judgment it is determined that Parham was not negligent in any manner in connection with the operations of the Elevator and that he did not, individually, fail to perform any act, which he had an obligation to perform, which resulted in damages or injury to the plaintiff. The Bank's abandonment of all its assignments of error directed to that judgment makes it unnecessary for us to determine whether it was negligent, or otherwise a breach of Parham's duty, for him to sign warehouse receipts in blank and deliver them over to Woodcock, the Local Manager of the Elevator and also an officer of its principal customer, and thus put it in Woodcock's power to issue such receipts when no grain had been delivered to the Elevator in exchange therefor. We express no opinion upon that question herein.

Parham having been adjudged not negligent and free from any failure to perform his duties resulting in damage to the Bank, it necessarily follows that there was no error in the conclusion of the Superior Court in its other judgment that Hartford, the surety on the bond of Parham for the faithful performance of his duties, is not liable to the Bank or in so much of the second judgment of the Superior Court as adjudges that the Bank recover nothing from Hartford. (Bank's Assignments of Error Numbers 45, 65, 78 and 79.)

The Bank's Assignments of Error Number 1 through 8 relate to rulings of the Superior Court excluding or admitting evidence. We have carefully examined each of these and find no error therein which would justify a new trial of this action. No useful purpose would be served by discussing any of these assignments in detail.

[286 N.C. 355] The Bank's Assignments of Error Number 15, in part, and 47 to 72, inclusive, relate to the refusal of the Superior Court to adopt findings of fact tendered by the Bank. When, as in the present case, the parties to an action waive a trial by jury and agree that the judge may hear the evidence and find the facts, the findings of fact so made by the trial judge are comparable to the verdict of a jury. Such findings are conclusive upon review in an appellate court if there is competent evidence in the record to support them, even though the appellate court may deem the weight of the evidence to be to the contrary. Cogdill v. Highway Comm., 279 N.C. 313, 182 S.E.2d 373; Fast v. Gulley, 271 N.C. 208, 155 S.E.2d 507; Crews v. Crews, 210 N.C. 217, 186 S.E. 156; Strong, N.C. Index 2d, Appeal and Error, § 57. Conversely, the weight and credibility of the evidence being for the trial judge in such case, he is not bound to find facts as proposed by a party, even though there be competent evidence to support such a finding, and his rejection of the party's tendered finding of fact may not be reversed by the appellate court and is not ground for a new trial. Mitchell v. Barfield, 232 N.C. 325, 59 S.E.2d 810. Assignment of Error Number 15, insofar as it relates to the court's failure to make findings of fact as tendered by the Bank, and Assignments of Error Numbers 47 to 72, inclusive, are, therefore, overruled.

Assignments of Error Numbers 16 to 36, inclusive, relate to findings of fact made by

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the Superior Court, the Bank contending that the specified findings are not supported by competent evidence. We have reviewed each such finding and, except as noted below, conclude that there is in the record ample, competent evidence to support each finding made by the Superior Court in all material respects. Under the aforementioned rule, these findings of fact are binding upon us and these assignments of error are, therefore, overruled except as noted below. It would serve no useful purpose to discuss these overruled assignments of error individually.

The Superior Court's Finding of Fact Number 41, Assignment of Error Number 35, is a mixture of findings of facts and conclusions of law. The essence of it is in this sentence: 'The plan to obtain possession of the sixteen old warehouse receipts from the Bank by issuing thirteen new fraudulent receipts was in no way intended nor did it in fact promote the interest of the Farmers Grain Elevator.' This is not supported by any evidence [286 N.C. 356] and is clearly in conflict with other findings which are themselves supported by evidence.

At the time Woodcock's plan to obtain the 16 old receipts (the validity of which, in the hands of the Bank, is not questioned by the parties or by the finding of the trial court) was conceived and carried out, the Elevator, not Southeastern, was under official examination. Woodcock, its Local Manager, knew there were outstanding receipts issued by it calling for delivery of thousands of bushels of grain in excess of that in the Elevator. He knew that, if this shortage were discovered by the examiner, the Elevator would be compelled to cease operations. His plan was not designed to reduce and did not reduce the indebtedness of Southeastern or to enable Southeastern to obtain grain by surrendering the receipts obtained from the Bank, or to enable Southeastern to raise cash by further negotiation of the receipts. The purpose of the fraud upon the Bank was to surrender the old receipts of the Elevator for cancelation by it and thus conceal the shortage in the Elevator's accounts from the examiner, whose presence threatened the life of the Elevator. Clearly, the Elevator was the intended beneficiary of the fraud on the Bank and, clearly, it has, by retaining and canceling these receipts, benefitted through a substantial reduction of its own liabilities if, as the defendants contend, the new receipts be held...