Wilson v. Hood
| Decision Date | 01 May 1935 |
| Docket Number | No. 380.,380. |
| Citation | 179 S.E. 660,208 N.C. 200 |
| Parties | WILSON. v. HOOD, Commissioner of Banks. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Sampson County; Grady, Judge.
Action by R. B. Wilson, Jr., against Gurney P. Hood, Commissioner of Banks of North Carolina. Prom a judgment dismissing the action, the plaintiff appeals.
Judgment reversed.
Civil action to establish claim for notary fees earned by plaintiff while in the employ of the Bank of Clinton and placed to the credit of the bank.
Plaintiff was employed by the Bank of Clinton from 1922 until its failure in 1931, first as clerk, then as teller, and later as assistant cashier. He also owned a few shares of stock in the bank. From 1925 until the bank closed, plaintiff was a notary public and did the notarial work of the bank. Up to January 1, 1927, he kept his notarial fees, but beginning with this date, plaintiff's salary was increased, along with other employees, and he was instructed by the cashier and managing director thereafter to place his notarial fees in the bank, crediting them to the account of undivided profits. Plaintiff complied under protest. The bank paid for the renewals of plaintiff's commission as a notary public and furnished him stationery, stamps, etc.
The fees in question amounted to $547.50 in 1927; $588.50 in 1928; $692 in 1929; $299.-50 in 1930; $136.50 in 1931; making a total of $2,264 for the five years.
Plaintiff's salary ranged from $1,650 in 1926 to $2,200 in 1928 and 1929. He testified on cross-examination:
The defenses interposed were: (1) Estoppel; (2) payment; and (3) statutes of limitations.
The court, being of opinion that plaintiff was estopped by his own testimony from bringing the action, dismissed the same as in case of nonsuit, and, from this ruling, plaintiff appeals, assigning errors.
J. A. McLeod, of Dunn, and Faireloth & Fisher, of Clinton, for appellant.
J. D. Johnson, of Clinton, for appellee.
It was conceded on the argument that, upon the record as presented, the plea of payment, if established, and not that of estoppel, constitutes the only valid defense to plain tiff's claim. Annotation 25 A. L. R. 170. As this was not passed upon in the court below, and the evidence directed to the point is nebulous, the case will be remanded for further proceedings.
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Leggett v. Southeastern People's College
...follow the theory of the trial in the court below. Hargett v. Lee, 206 N.C. 536, 174 S.E. 498, and cases cited; Wilson v. Hood, Com'r of Banks, 208 N.C. 200, 179 S.E. 660. It is apparent that the two claims clearly entitled to priority in payment exceed in amount the total available assets ......
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Housing Authority of City of Salisbury, Project NC-16-2, In re
...on appeal. Thompson v. Thompson, 235 N.C. 416, 70 S.E.2d 495. An appeal ex necessitate follows the theory of the trial. Wilson v. Hood, 208 N.C. 200, 179 S.E. 660. It has been said that 'the law does not permit parties to swap horses between courts in order to get a better mount in the Supr......
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Ammons v. Fisher
... ... constitutional limitation of its jurisdiction as an appellate ... court. Const. of N. C., art. 4, § 8." Wilson v. Hood, ... Com'r, 208 N.C. 200, 179 S.E. 660; Prater Pulverizer ... Co. v. Jennings, 208 N.C. 234, 179 S.E. 893; Coral ... Gables, Inc., v ... ...
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