South v. Sisk
| Decision Date | 10 January 1934 |
| Docket Number | No. 549.,549. |
| Citation | 205 N. C. 655,172 S.E. 193 |
| Court | North Carolina Supreme Court |
| Parties | SOUTH. v. SISK et al. |
Appeal from Superior Court, Ashe County; Sink, Judge.
Action by S. A. South against Paul Sisk and another. Judgment for defendants, and plaintiff appeals.
Affirmed.
When this action was called for trial in the superior court, the parties thereto waived a trial toy jury, and agreed that the judge should hear the evidence, find the facts therefrom, and render judgment thereon, in accordance with the law applicable to the facts as found by him. The facts found by the judge are as follows:
1. On October 31,-1931, the defendants were indebted to the plaintiff in the sum of $104, as evidenced by a note executed by the defendants, and payable to the order of the plaintiff. The said note was secured by a deed of trust which had been duly recorded in Ashe county.
2. On or about October 31, 1931, the defendants notified the plaintiff that payment of said note would be made to him by their attorney at his office in West Jefferson, N. C. In consequence of said notice, the plaintiff went to the office of defendants' attorney on November 6, 1931, and there accepted from said attorney, in payment of said note, a check for $104, which was drawn by the cashier of the People's Bank of Somerset County, Princess Anne, Md., on said bank. This, check was payable to the order of the plaintiff, and had been delivered by defendants to their attorney for the payment of plaintiff's note. After the plaintiff had accepted said check in payment of his note, he marked the note "Paid, " and delivered the same to defendants' attorney. At the requestof said attorney, plaintiff entered on the records of Ashe county, a cancellation of the deed of trust by which the said note was secured. The note marked "Paid, " and the deed of trust marked "Satisfied and cancelled, " are now in the possession of the defendants, both having been delivered to them by their attorney.
3. On November 6, 1931, the plaintiff, having first indorsed the said check, deposited the same to his credit with the First National Bank of West Jefferson, at West Jefferson, N. C. The said bank gave plaintiff credit for the amount of said check, and held said amount subject to plaintiff's checks. Thereafter, in due course, the First National Bank of West Jefferson caused the said check to be duly presented to the People's Bank of Somerset County, Princess Anne, Md., on November 13, 1931, for payment. The check was not paid, but was returned to the First National Bank of West Jefferson for the reason that the People's Bank of Somerset County had closed its doors on November 7, 1931, and at the date of the presentment of said check was in process of liquidation under the laws of the state of Maryland. After the said check was returned to the First National Bank of West Jefferson, it was charged by said bank to the account of the plaintiff, who had indorsed the same. The said check is now in the possession of the First National Bank of West...
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Wilson v. Commercial Finance Co., 749
...does not constitute payment of the item covered by it until the check itself is paid by the bank on which it is drawn. South v. Sisk, 205 N.C. 655, 172 S.E. 193; Andrews-Cooper Lumber Co. v. Hayworth, 205 N.C. 585, 172 S.E. 194; Raines v. Grantham, 205 N.C. 340, 171 S.E. 360; Moore & Dawson......
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Dobias v. White, 171
...the acceptance of the deed payment of the debt. Winborne v. McMahan, 206 N.C. 30, 173 S.E. 278; Millhiser v. Marr, supra; South v. Sisk, 205 N.C. 655, 172 S.E. 193. On the other hand, if the findings numbered 5 to 9 inclusive are accepted, then it was an executory contract which contemplate......
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Peek v. Wachovia Bank & Trust Co.
...Co., 190 N.C. 757, 130 S.E. 612; Moore & Dawson v. Highway Engineering & Construction Co., 196 N.C. 142, 144 S.E. 692. Cf. South v. Sisk, 205 N.C. 655, 172 S.E. 193. Also, on failure of the consideration for which a release or satisfaction of a mortgage was executed, it may generally be set......
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Parker v. First Citizens Bank & Trust Co.
... ... Dewey v. Margolis, 195 N.C. 307, 142 S.E. 22; ... Andrews-Cooper Lumber Co. v. Hayworth, 205 N.C. 585, ... 172 S.E. 194; South v. Sisk, 205 N.C. 655, 172 S.E ... 193; Barksdale v. Banks, 206 Ala. 569, 90 So. 913; ... National Bank of Commerce v. Chicago, B. & N. R. Co., 44 ... ...