The motion to dismiss was properly denied. There was. no attachment issued against the national bank but merely garnishment of the proceeds of draft in its hands.
The draft in question was received by the Pontiac Savings Bank of' Pontiac, Michigan, on 8 March, 1917, and was sent by it direct to the First National Bank of Durham for payment. Elmer L. Richmond, *366a member of tbe partnership known as the E. L. Richmond Company, testified that this draft was sold to the Pontiac Savings Bank, who paid the face value of the same; that the bill of lading was attached to the draft; that there was no agreement that the Pontiac Savings Bank would protect the draft if it was dishonored and that the E. L. Richmond Company had not had this draft since said bank paid for it. The vice-president of the Pontiac Savings Bank, the receiving teller, and the cashier all testified that the draft and bill of lading was purchased by the Pontiac Savings Bank on 8 March, 1917, and that on that date said bank paid the E. L. Richmond Company the sum of $173.47, the face of the draft.
There was no evidence to the contrary. There was no evidence tending to show that the E. L. Richmond Company had ever sold any other draft to the Pontiac Savings Bank, nor that J. II. Berry, the drawee, or the plaintiff had ever had any dealings with the Pontiac Savings Bank. Nor was there any evidence that there was any course of dealings between the parties to this controversy and the intervenor, the Pontiac Savings Bank, nor was there any. evidence of a custom of the Pontiac Savings Bank or any dealings whatever between it and the E. L. Richmond Company.
The plaintiff contended that the action was not a bona 'fide sale to the interpleader. The Pontiac Savings Bank, on the other hand, contends that it took the draft in the course of business, and actually paid E. L. Richmond Company the face value of the draft, to wit, $173.47.
The court told the jury in substance that if the interpleader took the draft in question with the right, either by express agreement or by implication from the course of dealing, to charge it back if not paid, that the interpleader bank would not be purchaser of the draft but a collecting agent. This charge was substantially the same as in Worth v. Feed Co., 172 N. C., 335.
The interpleader contends that this charge was erroneous because there was no evidence that there had been any dealings prior to this transaction between E. L. Richmond Company and the Pontiac Savings Bank, and asked the court to instruct the jury, “If you believe the evidence in this case you will answer the issue ‘Yes.’ ”
This contention of the interpleader was correct, and the court should have given the prayer as asked.
Error.