Standard Trust Co. Of N.Y. v. Bank

• Decision Date: 01 June 1914
• Docket Number: (No. 395.)
• Citation: 81 S.E. 1074,166 N.C. 112
• Court: North Carolina Supreme Court
• Parties: STANDARD TRUST CO. OF NEW YORK et al. v. COMMERCIAL NAT. BANK.

(166 N.C. 112)

81 S.E. 1074

STANDARD TRUST CO. OF NEW YORK et al.

v.COMMERCIAL NAT. BANK.

(No. 395.)

Supreme Court of North Carolina.

June 1, 1914.

1. Appeal and Error (§ 927*)—Nonsuit-Consideration of Evidence.

In reviewing a judgment of nonsuit, the evidence for plaintiff should be construed most strongly in his favor.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. 2912, 2917, 3748, 3758, 4024; Dec. Dig. § 927.*]

2. Evidence (§§ 71, S9*)—Presumptions-Due Course of Mail.

When a letter is shown to have been mailed, this establishes a prima facie presumption that it was received by the addressee in the usual course of the mails, and, in case of the addressee's denial, the presumption is not rebutted, but a question is raised for the jury as in ordinary cases of conflicting evidence.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 92, 111; Dec. Dig. §§ 71, 89.*]

3. Evidence (§ 591*) — Weight and Sufficiency—Conclusiveness of Evidence.

Where plaintiff introduced evidence that a letter had been mailed, establishing a prima facie presumption of receipt in due course of mail, plaintiff's introduction of defendant's answer denying such receipt does not conclude plaintiff, but merely raises a question for the jury.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2440-2443; Dec. Dig. § 591.*]

4. Appeal and Error ($ 856*)—Review-Nonsuit.

In reviewing a judgment of nonsuit, the Supreme Court is not confined to the ground assigned by the trial court, but may consider any other valid reason for the ruling.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3406-3424, 3429-3434; Dec. Dig. § 856.*]

5. Evidence (§ 595*)—Inferences—Weight and Sufficiency.

In an action on a check, where it was a material issue when it was received, defendant's failure to show when the check was received, taken with an evasive answer that it was found in its mail on a certain day, is a circumstance against defendant.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2444, 2445; Dec. Dig. § 595.*]

6. Banks and Banking (§ 155*)—Actions-Evidence—Sufficiency.

In an action against a bank upon which a check had been drawn, and to which it had been sent for payment before the drawer was discovered to be insolvent, or the bank had set off its own claim against the drawer's deposit, evidence held to raise a question for the jury as to the bank's implied acceptance of the check by reason of its failure to use due diligence in collection.

[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 536-538; Dec. Dig. § 155.*]

7. Banks and Banking (§ 155*)—Actions-Burden of Proof.

In an action against a bank upon which a check had been drawn, and to which it had been sent for collection before the drawer was discovered to be insolvent, plaintiff has the burden of proving that the check was received in sufficient time for it to have been paid out of funds of the drawer on deposit.

[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 536-538; Dec. Dig. § 155.*]

8. Banks and Banking (§ 155*)—Actions-Evidence—Sufficiency.

In an action against a bank upon which a check had been drawn, and to which it had been sent for collection, evidence held sufficient to warrant a finding that plaintiffs were the owners of the check.

[Ed. Note.—For other cases, see Banks and Banking, Cent. Dig. §§ 536-538; Dec. Dig. § 155.*]

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

Action by the Standard Trust Company of New York and others against the Commercial National Bank. From a judgment of nonsuit, plaintiffs appeal. Reversed and remanded.

This action was brought to recover the amount of a check drawn by Sol N. Cone, at Greensboro, N. C, on October 4, 1910, in favor of Latham, Alexander & Co., of the city of New York, for $5,000. The check was received in due time by the payee, indorsed to and deposited with the plaintiff, Standard Trust Company, to the credit of said payee, who immediately drew it out by checks against the amount so placed to its credit as a cash item; this being in accordance with an understanding previously existing between Latham, Alexander & Co., and the plaintiff. Latham, Alexander & Co. did business with the Standard Trust Company under such circumstances as that all checks deposited by them were treated as cash items; i. e., they could immediately draw against them. The check was, on the same day, October 5th, after having been indorsed, "Pay to the order of Girard Trust Company, Philadelphia, " by the Standard Trust Company of New York, mailed to the Girard Trust Company for "collection and credit." On October 6th the Girard Trust Company received this check, and after indorsing on it, "Pay to the Central National Bank. Prior Indorsements Guaranteed. October 6, 1910"—sent it by hand to the Central National Bank of Philadelphia, which bank received it on October 6th, between the hours of 9 and 3. And after indorsing it, "Pay to the order of any bank, banker or trust company. Prior indorsements guaranteed, October 6, 1910"—it was mailed on October 6th to the defendant bank at Greensboro for "collection and remittance"; the hour of mailing being about 5 p. m. The indorsements were all regular and in proper form. According to the due course of the mails, a letter mailed in Philadelphia at or about 5 p. m., October 6, 1910, would leave Philadelphia on the Pennsylvania Railroad train No. 55, arriving at Washington, D. C., at 3:40 a. m., the 7th, and would come out of Washington to Greensboro on the Southern Railway train No. 35, leaving Washington at 9 a. in., and arriving at Greensboro at about 6 p. m., the 7th. On the dates in question the regular mail connections were made, Southern 35 reaching Greensboro on the 7th at 6:24 p. m. So, according to the due course of the mails and the business of the defendant bank, this check arrived in Greensboro on the evening of October 7th, should have been and was in the bank to be handled by its cashier shortly after 8 o'clock on the morning of October 8th. At the opening of the bank on that morning Sol N. Cone, the drawer of the check, had to his credit $19,432.52. The 8th was Saturday. Some time between 7 and 9 o'clock on the Sth Cone attempted to commit suicide. He was then owing the defendant bank a note of $10,000. His attempt at suicide led to inquiry, which disclosed his insolvency. On October 10th (Monday), after having ascertained Cone's financial condition, the defend ant charged against his account the note of $10,000 due it. His deposit at the opening of the bank on the 10th was the same as it was on Saturday, to wit, ' $19,432.52. After charging this $10,000 against his account, the defendant bank, through its cashier, Boyles, presented the check to itself and duly protested it for nonpayment, because of an alleged insufficiency of funds, and returned it to the Central National Bank of Philadelphia by mail, where it was received on October 11th. The defendant denied the receipt of the check on the 8th, but admits it was found in its mail and was in its possession on the 10th, which admission, taken in the light of the surrounding circumstances, put it in its hands, to its knowledge, before the opening of the bank. There appears a second series of indorsements upon the check, which are thus accounted for: Upon its return to plaintiff, in New York, on the 13th, it was immediately sent back to Greensboro, through the Philadelphia banks; it being sent this last time, however, to the American Exchange Bank, instead of direct to defendant, upon which it was drawn. The facts in connection with this second series of indorsements are not now pertinent, further than they tend to corroborate and sustain plaintiff's contention as to the usual course of the malls, and the receipt of the check, on its first trip, the morning of the 8th, rather than the 10th, according to the contention of the defendant.

The court, at the close of the plaintiff's testimony, entered judgment of nonsuit, and the latter appealed.

Manly, Hendren & Womble, of Winston-Salem, and T. S. Beall, of Greensboro, for appellants.

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

WALKER, J. (after stating the facts as above. [1-3] It is now very common learning that, where judgment of nonsuit is given upon the evidence, the plaintiff is entitled to have the same construed most favorably for him (Brittain v. Westhall, 135 N. C. 492, 47 S. E. 616; Morton v. Lumber Co., 152 N. C. 54, 67 S. E. 67; Johnson v. Railroad Co., 103 N. C. 431, 79 S. E. 690), and we will so consider it throughout the discussion of the case. We find this statement in the brief of plaintiff's counsel:

"In the course of the debate upon the motion to nonsuit the trial judge stated that, but for the introduction by the plaintiff of a portion of defendant's answer, to wit: 'Sec. 5. In answer to the allegations of article five of the complaint, the defendant avers that the check therein referred to was found by the defendant in its mail on the morning of the 10th of October'— he would have submitted to the jury for their determination the question whether the check arrived on the 8th or later; his view being that, by introducing the above-quoted declaration of the defendant, the presumption of receipt in due course of mails was met and rebutted as a matter of law. In other words, that the plaintiff offered, as a part of its evidence, testimonywhich disclosed, as a fact, the date of its receipt. With respect to the contention that, even if the check was not in hand until the loth, the plaintiff was entitled to recover because it had brought itself into such relationship with the defendant, by mailing it the check for collection, as to place the defendant under a duty to look after the interests of the plaintiff, and that duty was such as to prevent it from preferring itself, the judge made no affirmative statement as to his reasons for the nonsuit."

If the presiding judge was of the opinion that the statement...