Moon v. Simpson, 172 N.C. 576 (1916)

Nov. 22, 1916 · Supreme Court of North Carolina

172 N.C. 576

J. S. MOON et al. v. SAMUEL W. SIMPSON and FAUQUIER NATIONAL BANK, Intervenor.

(Filed 22 November, 1916.)

1. Bills and. Jiotes — Negotiable Instruments — Indorsement—Presumptive Evidence — Trials—Questions for Jury.

Where the holder of a negotiable draft introduces it in evidence and proves the indorsement to him, he makes out a prima facie case, which entitles him to go to the jury in his action thereon.

2. Same — Banks and Banking — Purchaser for Talne.

A bank intervened in attachment proceedings and claimed a draft, the subject thereof,-as a holder in due course by indorsement from the defendant, its depositor; and there being no evidence that the intervenor held the draft for collection, or that the proceeds .were the property of the defendant, but that he indorsed it to the bank, and received the money thereon, it is -Held, that there is no- evidence of a defect in intervenor’s title thereto. Revisal, 2204.

Civil actioN tried at May Term, 19Í6, of G-uilfoRD, before Gime, J.,' upon this issue:

Is tbe Fauquier National Bank of "Warrenton, Va., intervenor, tbe owner of tbe money attached in tbis proceeding? Answer; ‘‘Yes.”

From tbe judgment rendered, plaintiffs appeal.

Brooks, Sapp & Williams for plaintiffs.

King & Kimball for intervenor.

Brown, J.

Tbis case was before us at Fall Term, 1915, 170 N. C., 335, and is referred to for a statement of tbe controversy. Tbe motion to nonsuit tbe intervenor was properly overruled, as tbe bank bad. introduced tbe draft and proved tbe indorsement, thereby making out a prima facie case that entitled it to go to tbe jury. Moon v. Simpson, supra; Worth Co. v. Feed Co., ante, 335.

Tbe law applicable to tbis case is clearly stated by Mr. Justice' Allen in tbe opinions in those two cases, and need not be repeated here. . Tbe assignments of error relating to tbe evidence are without merit, and need not be discussed.

In our view bis Honor in tbe charge gave plaintiffs more than they were entitled to when be submitted tbe controversy to tbe jury as an open question as to whether intervenor’s title was defective. As in tbe Worth Go. case, there is neither allegation nor proof that tbe title of tbe intervenor, which negotiated tbe draft, is defective within tbe meaning of tbe statute. Eevisal, 2204.

There is no evidence that tbe intervenor held tbe draft for- collection or that tbe proceeds were tbe property of Simpson, tbe indorser. On the contrary, all tbe evidence tends to prove that tbe intervenor purchased tbe draft and placed tbe proceeds to Simpson’s credit, who at once drew them out.

Tbe court might well have instructed tbe jury that if they believed tbe evidence tbe indorsement was properly proved, and there being no allegation or evidence of any defect in intervenor’s title, it was entitled to recover.

No error.