Peaslee-Gaulbert Co. v. Dixon

• Decision Date: 09 November 1916
• Docket Number: 366.
• Citation: 90 S.E. 421,172 N.C. 411
• Parties: PEASLEE-GAULBERT CO. v. DIXON.
• Court: North Carolina Supreme Court

90 S.E. 421

172 N.C. 411

PEASLEE-GAULBERT CO. v. DIXON.

No. 366.

Supreme Court of North Carolina

November 9, 1916

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

Action by the Peaslee-Gaulbert Company against R. L. Dixon. Judgment for defendant, and plaintiff excepts and appeals. No error.

Where note, payable at maker's bank of deposit, was sent to such bank for collection, the bank was the agent of the payee.

This is an action on a note, tried on the following agreed facts; the plea of the defendant being payment:

(1) That the plaintiff is a corporation located and doing business in the state of Kentucky.

(2) That the defendant is a citizen and resident of the county of Caswell, state of North Carolina.

(3) That on the 15th day of September, 1914, the defendant signed and delivered to the plaintiff his promissory note in words and figures as follows:

"September 15, 1914.

Sixty days after date I promise to pay to the order of Peaslee-Gaulbert Co., Inc., one hundred dollars, for value received, negotiable and payable without offset at the Bank of Caswell, Milton, N.C. We, the makers and indorsers of this note, hereby waive the benefit of our homestead exemptions as to this debt.

[Signed] R. L. Dixon."

(4) That the plaintiff deposited the note with its bank in Louisville, Ky., for collection, which said bank forwarded same directly to the Bank of Caswell for collection.

(5) That said note was, on the 16th day of November, 1914 presented to the defendant by Henry Hines, employé of and collector for the Bank of Caswell. The defendant wrote across the face of the note, "Charge to my account," and thereunder signed his name, "R. L Dixon," and returned the said note to the said Henry Hines. The said Henry Hines accepted the indorsement of the defendant, and took the note to the Bank of Caswell, and delivered the same to the cashier, who received the note and looked at the indorsement placed thereon by Mr. Dixon and said it was all right. The defendant heard nothing further from the bank about the note, nor received any information from the plaintiff or any other source that the Bank of Caswell did not make proper remittance to plaintiff, nor that said bank had not charged the same to defendant's account, until after the bank examiner took charge of said bank.

(6) That on said 16th day of November, 1914, the defendant had to his credit in the Bank of Caswell the sum of $98.98, and on the next day, November 17, 1914, he deposited the sum of $101, and later at different times made two other deposits thereafter in said bank, and at all times from and after November 16th, up to the time the said Bank of Caswell was taken in charge by the state examiner, to wit, November 28, 1914, had more than sufficient funds in said bank to pay the said note.

(7) That the said Bank of Caswell closed its doors on November 28, 1914, the bank examiner taking charge thereof on the said 28th of November, 1914, and said bank was placed in the hands of a receiver.

(8) That S. A. Hubbard, bank examiner, found this note in the Bank of Caswell on the 28th day of November, 1914, and returned it to the plaintiff.

(9) That the said note was not charged to the defendant upon the books of the said bank, nor was there any entry on the bank books showing payment to the plaintiff.

(10) That the defendant, in filing his claim against the receiver of the Bank of Caswell as a creditor, by reason of his deposits in the bank, deducted from the amount of his said claim against the bank by reason of his deposits the sum of $100, the amount of note sued on herein.

Upon the foregoing facts his honor charged the jury as follows:

"The issue in this case which we are now trying is: 'Is the defendant indebted to the plaintiff, and, if so, in what amount?' I instruct you, under the whole evidence, if you believe it all, as a matter of law following in connection with that evidence, it would be your duty to answer this issue, 'No; nothing.' "

Plaintiff excepted. The jury having returned the verdict for the defendant, as set out in the record, his honor entered judgment accordingly. Plaintiff excepted and appealed.

M. C. Winstead, of Milton, and Carver & Winstead, of Roxboro, for appellant.

Ivie, Trotter & Johnston, of Spray, for appellee.

ALLEN J.

His honor sustained the plea of payment of the defendant, and the question for decision is whether this ruling is correct on the agreed facts.

The note was payable at the Bank of Caswell, and this was "equivalent to an order to the bank to pay the same for the account of the principal debtor thereon" (the defendant). Revisal § 2237. In addition to this, the Bank of Caswell was the agent of the plaintiff for collection (3 R C. L. 639; 7 C.J. 597; Bank v. Floyd, 142 N.C. 187, 55 S.E. 95), and when the note was presented to the defendant for payment, he wrote on it a direction to the bank to charge to his account, which the cashier said was all right. The note remained in the bank for 12 days, with this order indorsed thereon unrevoked, and...