This action was first tried at May Term, 1928, of the Superior Court of Pitt County. From judgment rendered at said trial, dismissing the action, as upon nonsuit, at the close of the evidence for plaintiffs, plaintiffs appealed to this Court. On said appeal, the judgment was reversed. Dawson v. Bank, 196 N. C., 135, 144 S. E., 833. In the opinion it is said: “The law in this State, both by statute and by authoritative decisions of this Court, is to the effect that the payee of a check cannot maintain an action upon the check against the bank on which the check is drawn, unless and until the check has been accepted or certified by the bank. C. S., 3171. Trust Co. v. Bank, 166 N. C., 112, 81 S. E., 1074.”
Ordinarily, when the drawee bank declines to pay the check, or has paid the amount of the check to one who is not entitled to receive said amount, only the drawer of the check can maintain an action against the drawee bank, on the check, or for its amount. Land Bank v. National Bank, post, 526.
In this case, however, it was held that upon the facts which the evidence offered by plaintiffs tended to show, plaintiffs, as payees of the check, are entitled to recover of the defendant bank, unless said bank can satisfy the jury by evidence, that the amount of the check had been paid by it to the payees, or to some person authorized by them to receive *501payment. Tbe drawers of the cheek had authorized payment of the check to a holder without the endorsement of the payees, and were therefore estopped from contending that the bank was in any aspect of the case liable to them for the amount of the check. They have agreed to save the bank harmless in this action.
It was held on the former appeal that the action of the bank was in effect an acceptance of the check, and rendered the bank liable to the owner of the check for its proceeds. Payment of the proceeds to one who was not the owner of the check did not discharge the bank of liability to such owner. When the bank accepted the check, and charged its amount to the account of the drawers, it impliedly undertook to pay the proceeds of the check to the -true owner.
Defendants’ contention on this appeal that there was error in the ruling of the trial judge that the burden of the issue was on the defendant bank, and not on the plaintiffs, cannot be sustained. This ruling was correct on principle, and is in accord with the authorities both here and elsewhere. The burden was on the bank which admitted that it had accepted the check, and charged same to the account of the drawers, to show that it had paid the amount of the check to the payees, or to some person authorized by them to receive payment. Land Bank v. National Bank, supra.
There was no error in excluding evidence tending to show a custom, at Greenville, N. C., in accordance with which checks issued by tobacco warehousemen for the payment of tobacco sold by them for farmers, although such checks were drawn payable to the order of payees named therein, were paid by the drawee banks of said city, upon their presentment, to holders without the endorsement of the payees, just as if said checks were drawn payable to bearer. This custom, if it existed, could not affect the rights of payees of checks, drawn payable to their order, under the laws of this State. The title to a check payable to the order of the payee can be transferred only by the delivery of the check, with the endorsement of the payee thereon. C. S., 3010. The title to such check, and the right to its proceeds, when the check has been accepted for payment by the drawee bank, remains in the payee, until he has transferred the check by endorsement and delivery and thereby directed payment to be made to another. Payment of such check to one who is not a holder under the endorsement of the payee, is at the risk of the drawee bank.
Defendants offered evidence which they insist tended to show that the amount of the check was paid to one of the payees. This evidence was properly excluded upon objection by the plaintiffs. Defendants concede that they had no evidence tending to show that payment to one of the payees was authorized by the other payee. Where a check is payable to *502two or more persons as payees, or to their order, the amount of the check must be paid to both payees or upon the order of both. Payment to one of the payees or to the order of one payee without the authority of the other payee, does not discharge the drawee bank of its liability for the amount of the check, unless the payees are partners. C. S., 3022.
We find no error in the trial of this action. The judgment is affirmed.
No error.