Sears, Roebuck & Co. v. Rouse Banking Co.

• Decision Date: 31 March 1926
• Docket Number: 224.
• Citation: 132 S.E. 468,191 N.C. 500
• Parties: SEARS, ROEBUCK & CO. v. ROUSE BANKING CO.
• Court: North Carolina Supreme Court

132 S.E. 468

191 N.C. 500

SEARS, ROEBUCK & CO. v. ROUSE BANKING CO.

No. 224.

Supreme Court of North Carolina

March 31, 1926

Appeal from Superior Court, Lenoir County; Barnhill, Judge.

Action by Sears, Roebuck & Co. against the Rouse Banking Company wherein the National Bank of La Grange was made a party. Judgment for plaintiff, and defendant appeals. No error.

Instruction that case alleged to be authoritative by defense counsel was good law, but not applicable to facts in present case, held proper.

This action was founded on the following correspondence:

"La Grange, N. C., July 13.

"Sears Roebuck & Co., Chicago, Ill.: J. E. Warters deposited $3,418.45 to pay for material when inspected and found satisfactory ship out lumber at once.

Rouse Banking Co."

July 27.

Rouse Banking Co., La Grange, N.C. - Gentlemen: We have your telegram advising that J. E. Martins (Warters) deposited $3,418.45 with your bank to pay for material when inspected and found satisfactory.

We are entering the order for shipment to go forward as promptly as possible. To complete the transaction and in line without regular order, we desire the attached form properly signed, and for your convenience in returning are inclosing a stamped envelope.

We appreciate your co -operation in connection with this deal, and take this opportunity to thank you. Yours truly,

Enc. Sears, Roebuck & Co."

Sears, Roebuck & Co., Chicago.

In reply to this letter, Address Department _____.

Date----July 30, 1920.

Sears, Roebuck & Co. Credit Dept. Chicago, Ill. - Gentlemen: J. E. Warters, box 112, La Grange, N.C. has deposited with us the sum of $3,418.45, which has been set aside in a special fund subject to your order, same to be paid to you on delivery of the building material ordered, with the understanding that the goods are to conform with your specifications and meet with this depositor's approval. The material is to be inspected immediately on receipt, and, if satisfactory, accepted by depositor, who will then notify us to send you the money.

It is understood, however, that no responsibility in connection with any of the foregoing matters is to attach to this bank or any of its officers.

Yours truly,

Rouse Banking Co. (Bank),

By J. P. Joyner, Asst. Cashier,

La Grange, N. C."

Feb. 1, 1921.

Rouse Banking Co., La Grange, N.C. - Gentlemen: Attention Mr. J. P. Joyner, Asst. Cashier.

Referring to the building material account of Mr. J. E. Martins (Warters) which is open under our number CR-805641, for which Mr. Martins (Warters) deposited $3,418.45, with you to pay the account, we wish to advise that as we have complied with our part of the agreement, the above amount should be forwarded to us without delay.

It is important that this matter should have your prompt attention and we will look for a check for the above amount in payment of the account very shortly.

Yours truly, Sears, Roebuck & Co."

The assets of Rouse Banking Company were taken over by the National Bank of La Grange, and it has been made a party to the action. It had notice of plaintiff's claim, and plaintiff contended it was liable, and had assumed "liability and responsibility for the payment of the claims." This was denied by defendants. The defendant Rouse Banking Company (1) denied the authority of the assistant cashier, and contended that the transaction was ultra vires; (2) there had been no compliance on plaintiff's part "in respect to conforming to specifications, meeting the consignee's approval, nor with the inspection provided for not advised as to acceptance by the consignee nor any notification in respect to sending the money as set forth"; (3) "it is understood, however, that no responsibility in connection with any of the foregoing matters is to attach to this bank or any of its officers, and this defendant is advised, informed, and believes, and upon information and belief alleges, that the defendant assumed no responsibility in respect to the payment of said funds, and this defendant is further advised, informed, and believes, and upon information and belief alleges, that, if the said writing had been authorized by this defendant, the defendant realleging that it was not authorized, nevertheless the plaintiff was guilty of such laches and negligence in respect thereto that this defendant would be relieved and absolved from liability in the premises."

The issues submitted to the jury and their answers thereto were as follows:

"(1) Did J. E. Warters deposit with the Rouse Banking Company $3,418.45 to be set apart subject to the order of the plaintiff to be paid to the plaintiff on delivery of the building material ordered when such material was received and accepted by said Warters? Answer: Yes.

(2) Did the plaintiff, Sears, Roebuck & Co., ship to and did J. E. Warters receive and accept the lumber and material ordered by Warters from the plaintiff as alleged in the complaint? Answer: Yes.

(3) What amount, if any, was J. E. Warters required to pay out as freight which the plaintiff had contracted to pay? Answer: $105.99.

(4) Has the defendant Rouse Banking Company failed and refused to pay over said funds to the plaintiff as alleged? Answer: Yes.

(5) Is the defendant National Bank of La Grange liable upon said account? Answer: Yes."

Numerous exceptions and assignments of error were made in the court below. The material ones and necessary facts will be considered in the opinion.

Rouse & Rouse, of Kinston, for appellant.

Dawson & Jones and F. E. Wallace, all of Kinston, and Manning & Manning, of Raleigh, for appellee.

CLARKSON J.

The whole controversy hinges on the letter of the assistant cashier of defendant Rouse Banking Company to plaintiff, Sears, Roebuck & Co. Analyze the letter: (1) J. E. Warters, box 112, La Grange, N. C., has deposited with us the sum of $3,418.45, which has been set aside in a special fund, subject to your order; (2) same to be paid to you on delivery of the building material ordered, with the understanding that the goods are to conform to your specifications and meet with this depositor's approval; (3) the material is to be inspected immediately on receipt, and, if satisfactory, accepted by depositor, who will then notify us to send you the money; (4) it is understood, however, that no responsibility in connection with any of the foregoing matters is to attach to this bank or any of its officers.

The above letter was dated July 30, 1920, and demand was made by plaintiff on February 1, 1921. It is admitted by the Rouse Banking Company "that at the time of sending the letter above referred to the said Warters had the amount in bank, but that it was never advised that the material had been inspected, found satisfactory or inspected by Warters, and that it had never been notified by Warters to remit the money to the plaintiff, and that, when demand was made, on February 1, 1921, by the plaintiff upon the bank for payment, Warters had withdrawn all his moneys from the bank, and had no money on deposit."

The first ground of defense by defendant:

"It is understood, however, that no responsibility in connection with any of the foregoing matters is to attach to this bank or any of its officers."

This ground is untenable. The bank never carried out its agreement. The representation by the bank to plaintiff was that it had a deposit set aside in a special fund, subject to plaintiff's order. In this respect it broke its agreement, and allowed J. E. Warters to withdraw this special fund. No responsibility would attach to the bank or any of its officers, if it had kept its agreement and the special fund remained in bank. The defendant bank cannot take advantage of its own wrong. "Nullus commodum capere potest de injuria sua propria." No one can obtain an advantage by his own wrong. Co. Litt. 148; Broom, Max. 279; Black's Law Dic. (2d Ed.) 837.

The defendant Rouse Banking Company further contends that there was no evidence that the material upon receipt was inspected and found satisfactory by the consignee, and excepted and assigned as error the following exerpts from the charge of the court below:

"Gentlemen of the jury, if you should find from this evidence that Warters deposited with the Rouse Banking Company, already having money there, instructed them to set it apart and hold the same to the use of the order of Sears, Roebuck & Co., to be paid to Sears, Roebuck & Co., when they had complied with the order that he has made to them for certain lumber, and when the same had been received and approved by him, and that they so received the deposit, and so advised the plaintiff company, and that they had the money, then they had no right to return that money to Warters without the consent of Sears, Roebuck & Co. any more than they had the right to pay it to Sears, Roebuck & Co. until it had complied with that order, and delivered the merchandise with the approval of Warters, who ordered the same. It was their duty to hold it after they so received it in accordance with that agreement. If they did so receive it, and the plaintiff has complied with their part of the contract by delivering the material, and same has been received and approved by Warters, then it is their duty to turn the money over to the plaintiff, as they contracted to do; that is, they held it subject to the order, and subject to the disposition, of the plaintiff company,

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