Glenn v. The Farmer's Bank of North Carolina

• Decision Date: 31 January 1874
• Court: North Carolina Supreme Court
• Parties: R. W. GLENN v. THE FARMER'S BANK OF NORTH CAROLINA.

70 N.C. 191

R. W. GLENN

v.THE FARMER'S BANK OF NORTH CAROLINA.

Supreme Court of North Carolina.

January Term, 1874.

The refusal of the Judge below to consolidate several actions brought to recover the amount of certain bills issued by a Bank, the defendant, where it did not appear that the bills sued on were all of like character, and emitted under the same circumstances, was right, and the defendant was not entitled to a new trial on account of such refusal.

The rule that when two witnesses of equal credibility swears affirmatively and negatively as to a certain issue, credit is to be given to the affirmative statement in preference to the negative, is not a rule of law to be laid down by the Court, and it was no error in the Judge to refuse so to charge.

If a statute declares a security void, it is void in whosesoever hands it may come. If however, a negotiable security be founded on an illegal consideration, (and it is immaterial whether it be illegal at common law or by statue,) and no statue says it shall be void, the security is good in the hands of an innocent holder, or of one claiming through such holder.

( Buie v. Kelly, 7 Jones, 266; Weith v. City of Wilmington, 68 N. C. Rep. 24, cited and approved.)

CIVIL ACTION, commenced in a Justice's Court, and from thence carried by appeal to the Superior Court of GUILFORD county, where it was tried before Tourgee, J., at Spring Term, 1873.

Plaintiff sued out twenty-one summons before a Justice of the Peace for the recovery of certain bank bills issued by defendant, and obtaining judgment, the defendant appealed to the Superior Court. Upon the call of the case, his Honor ordered pleadings to be filed, and the defendant moved to consolidate the several suits into one action. Motion refused, and defendant excepted.

Defendant then moved that the demurrer raised in the plaintiff's replication to the answer be overruled. Motion refused on the ground that there was also an issue of fact, as to the want of notice, involved; and his Honor directed the following issues to be submitted to the jury:

1. Did defendant issue the notes (bank bills) sued on, as a loan to the State of North Carolina and the county of Guilford, to aid in the rebellion, or were any parts of said notes so issued, and if so, what parts?

2. Had the plaintiff notice of the fact, if found, that the notes were issued to aid the rebellion, at the time he received them.

The jury responded to these issues in the negative, finding that the notes were not issued to aid the rebellion, and that the plaintiff at the time he received the same, had no notice of the cause or reason of their issue.

The evidence on the trial of the following issues was substantially as follows:

For the plaintiff, he himself stated that he obtained the bills sued, in the ordinary course of business and gave value for them; and that he had demanded payment therefor, from the cashier of the bank, at their banking-house in Greensboro', on the 21st day of February, 1871, and was refused.

On cross-examination, the plaintiff stated that he purchased the notes on or about the 18th February, 1871, of Wilson & Shober, bankers and brokers in Greensboro, at the price of forty to forty-five cents in the dollar, to the amount of $5,600, and that he paid cash for some, and for the residue he gave his note; that of this sum, $700 secured by his own note, is still unpaid. He further testified, that he had no notice that any portion of the notes of defendant had been issued, or was bound to the State or county of Guilford, for the support of the war, at or before his purchase, and denied that he had been informed by the cashier, Wm. A. Caldwell, that there was a class of bills, which Caldwell denominated “war issues,” and which the bank refused to receive except at very low rates, as compared with other issues.

The cashier, Wm. A. Caldwell, on the part of the defendant, stated, that the bank had made no issue of its notes after August, 1860, until June, 1861; that on the 10th of the latter month, on application by the Public Treasurer, the bank, by its officers, filled up and signed and loaned to the State its notes to the amount of $30,000; that in July, October and November following, it made further loans to the State, of its own bills, through Mr. Courts, the Public Treasurer, to the amount in the aggregate of $95,000. Witness further stated, that during the same period, the bank in like manner, loaned to the county of Guilford, for the purpose of equipping companies to aid the Confederate government, in the war pending, the sum of $5,500. Witness identified those bills, which he denominated “war issues,” by their having the letter “B” above the number, 1,401, and the whole of the issue marked with the letter “C,” saying that the date of the bills was no criterion or guide in distinguishing them; and of the bills sued on, being of the denomination of five and ten dollars, to the amount of $200, he specified $100 of that amount, by the letters and numbers, as being of the class of war issues. He further stated, that the bank in 1862, purchased of the Public Treasurer bonds of the State, issued for the purpose of paying the tax levied by the Confederate government, to the amount of 48,000, which bonds the bank had sold, except about $2,700 of the same. The latter were exhibited. This witness could not say, that the $100 of the “war issue” sued upon by the plaintiff, was of the parcel loaned to the State, or to the county of Guilford, or was the same used in the purchase of State bonds. It might have been, that he made the loans with bills of other banks in part, as they might be mixed promiscuously in the till of the bank, and the new issue might have been kept to supply the vacuum. He could not say that the bills in controversy did not get into circulation in that way, that is, in the usual daily transactions with the customers of the bank; though he was of opinion, that they were all issued to supply the loans to the State and the county, and in the purchase of the bonds, as before related.

The witness further stated, that before the plaintiff in this action, purchased the notes, in a conversation between them relating to the payment of a debt the plaintiff owed the bank, and its satisfaction in the notes of the bank, he, the witness, informed the plaintiff that he, as cashier, would not receive in such payment more than one-third of the amount in “war issues,” and that he further informed the plaintiff that there was a certain class of notes loaned the State for war purposes, which he included in this name; and that they would not be taken by the bank except at very low rates. Witness stated to plaintiff, that the bank had issued of the letter “B” above the numbers 1,401, and of the letter “C” to an amount of about $145,000 and put them into circulation.

Defendant admitted that $100 of the bills sued upon was free from any of the objections as being issued for war purposes.

The plaintiff having denied that he was informed of the “war issues” by the cashier, as above stated, the counsel of the defendant asked his Honor to instruct the jury--their characters for veracity being in every respect equal-- that the positive statement of the witness, Caldwell, was entitled to the greater weight. His Honor declining to give such instruction, defendant again excepted.

For the defendant, it was further asked of the Court, to instruct the jury that the issue by the bank, to pay for State bonds issued as aforesaid, was in aid of the war. Instruction declined, and defendant again excepted.

The case being submitted to the jury, after being sometime out, they were recalled and charged by his Honor, that they had nothing to do but respond to the issues, and that it was not a matter for their consideration, how a decision either one way or another would affect the parties. That he intended to say this in his first charge, but from oversight omitted it.

The jury again retired, and, after awhile, returned the following verdict in writing:

“We find, first, that one-third of the notes were issued by the defendant to loan to the State in aid of the rebellion;

2d. That the plaintiff had no knowledge of the fact that they had been so loaned at the time he purchased them.”

This verdict the Court refused to accept, explaining to the jury its indefiniteness as to which of the bills and how many, were included in the third, they found; that he should set a verdict, in that shape, aside and grant a new trial. To this the plaintiff excepted. His Honor then repeated his previous charge, that the effect of their decision upon the parties was not a matter for their consideration; that there were grave questions of law to be decided after their verdict was rendered, which would probably require two Courts to dispose of; and unless they could select of the $200 in bills delivered to them, the particular notes issued in aid of the rebellion, they should find the first issue in the negative. Defendant again excepted.

His Honor further instructed the jury, that if the notes or any of them, were issued in aid of the rebellion, and the plaintiff had no notice of it at the time of his purchase, it did not affect his right to recover. Again defendant excepted.

The jury returned their verdict as herein before stated, to wit; finding each of the two issues in the negative. Upon being polled, one of their number said, that “he was satisfied that part of the notes were issued in aid of the rebellion, but not being able to point out the particular bills, under the charge of the Court, he concurred in the verdict.”

Defendant moved the Court to set aside the verdict, and grant a new trial. Motion refused. Judgment in accordance with the finding of the jury. Defendant appealed.Wm. A. & J. W. Graham and Scales & Scales, for appellant , filed the following brief:

The defendant submits that the judgment below should be reversed:

I. 1st. For refusal to consolidate this...