Moon v. Bank

• Citation: 90 S.E. 578
• Decision Date: 22 November 1916
• Docket Number: (No. 400 H.)
• Court: United States State Supreme Court of North Carolina
• Parties: MOON et al. v. SIMPSON (FAUQUIER NAT. BANK, Intervener).

(172 N.C. 576)

90 S.E. 578

MOON et al.

v.SIMPSON (FAUQUIER NAT. BANK, Intervener).

(No. 400 H.)

Supreme Court of North Carolina.

Nov. 22, 1916.

Appeal from Superior Court, Guilford County; Cline, Judge.

Action by J. S. Moon and others against Samuel W. Simpson, Fauquier National Bank, intervener. Judgment for intervener, and plaintiffs appeal. No error.

This is a civil action, tried upon this issue: Is the Fauquier National Bank of Warrenton, Va., intervener, the owner of the money attached in this proceeding? Yes. From the judgment rendered, plaintiffs appeal.

Brooks, Sapp & Williams, of Greensboro, for appellants.

King & Kimball, of Greensboro, for intervener.

BROWN, J. This case was before us at Fall term, 1915 (170 N. C. 335, 87 S. E. 118), and is referred to for a statement of the controversy. The motion to nonsuit the intervener was properly overruled, as the bank had introduced the draft and proved the indorsement, thereby making out a prima facie ease that entitled it to go to the jury. Moon v. Simpson, supra; Worth Co. v. Feed Co., 90 S. E. 295, present term.

The law applicable to this case is clearly stated by Mr. Justice Allen in the opinions in those two cases, and need not be repeated here. The assignments of error relating to the evidence are without merit, and need not be discussed.

In our view his honor in the charge gave plaintiffs more than they were entitled to when he submitted the controversy to the jury as an open question, as to whether intervener's title was defective. As in the Worth Company Case, there is neither allegation nor proof that the title of the intervener, which negotiated the draft, is defective within the meaning of the statute. Revisal, § 2204.

There is no evidence that the intervener held the draft for collection, or that the proceeds were the property of Simpson, the indorsee On the contrary, all the evidence tends to prove that the intervener purchased the draft and placed the proceeds to Simpson's credit, who at once drew them out.

The court might well have instructed the jury that if they believed the evidence the indorsement was properly proved, and, there being no ajlegation or evidence of any defect in intervener's title, it was entitled to recover.

No error.