Webster v. Wachovia Bank & Trust Co., 208 N.C. 759 (1935)

Nov. 20, 1935 · Supreme Court of North Carolina

208 N.C. 759

MRS. C. N. WEBSTER v. WACHOVIA BANK AND TRUST COMPANY.

(Filed 20 November, 1935.)

1. Evidence D f—

Evidence which tends to corroborate a party’s witnesses is competent, and is properly admitted upon the trial for that purpose.

2. Banks and Banking C lb — Burden is on depositor claiming a deposit in certain amount to prove deposit in amount claimed.

In an action by a depositor to recover a sum alleged to have been deposited in defendant bank, which sum the bank refused to pay upon its contention that the deposit was in a smaller sum, the burden is on plaintiff depositor to prove the deposit in the amount claimed, and the introduction of a pass-book showing an entry by an employee of the bank of the deposit in the amount claimed establishes a prima faoie ease placing the burden on the bank of going forward with the evidence or taking the risk of an adverse verdict, but does not shift the burden of proof on the issue to the bank.

3. Evidence B a—

The burden is on plaintiff to establish his case, and where he makes out a prima facie case defendant must introduce evidence or take the risk of an adverse verdict, but the burden of the issue is not shifted to defendant.

4. Appeal and Error B b—

Where plaintiff assumes the burden of proof at tbe trial and does not there contend that the burden is on defendant, plaintiff will not be heard on appeal to assert that the burden was on defendant.

5. Costs A c—

Where defendant tenders judgment in its answer for the amount recovered by plaintiff, which tender is refused by plaintiff upon her claim that she is entitled to recover a larger amount, the costs are properly taxed against plaintiff. C. S., 896.

Devin, J., took no part in the consideration or decision of this case.

Appeal by plaintiff from Warlick, J., at February Term, 1935, of BuNCOmbe.

No error.

This is an action to recover of the defendant the sum of $2,518.75, with interest on said sum from 1 April, 1934.

It is alleged in the complaint and admitted in the answer that on 3 January, 1934, the plaintiff deposited with the defendant a sum of money, which was credited to the plaintiff by the defendant on its books, and that at the time of said deposit the defendant agreed to pay to plaintiff interest on said sum of money at the rate of three per cent per annum, from 1 January, 1934, payable quarterly.

The plaintiff alleges in her complaint that the amount of her deposit was $2,500, and that on 1 April, 1934, the defendant refused to pay to her interest on said amount, or to pay to her the amount of said deposit, in accordance with its agreement. This allegation is denied in the answer. The defendant alleges that the amount of said deposit was $1,500, and in its answer tenders to the plaintiff judgment for the sum of $1,500, with interest at the rate of three per cent per annum, from 1 January, 1934, which judgment the defendant alleges it is ready, willing, and able to pay.

At the trial, the plaintiff offered evidence tending to support her allegation with respect to the amount of her deposit. She offered in evidence a pass book issued to her by the defendant at the date of her deposit, showing that the amount of the deposit was $2,500. The defendant offered evidence tending to contradict the evidence for the plaintiff, and to show that the entry of the deposit in the pass book was due to an error of its employee. The evidence for the defendant tended to show that the amount of the deposit made by the plaintiff was $1,500.

The only issue submitted to the jury was answered as follows:

“What amount did the plaintiff deposit with the defendant on 3 January, 1934? Answer: '$1,500.’”

From judgment that plaintiff recover of the defendant the sum of $1,500, with interest at the rate of three per cent per annum from 1 January, 1934, and that plaintiff pay the costs of the action, the plaintiff appealed to the Supreme Court, assigning as error in the trial the admission, over her objections, of certain evidence offered by the defendant, and an instruction of the court to' the jury with respect to the burden of proof on the issue submitted to the jury.

Johnston & Horner for plaintiff.

Geo. H. Wright, B. B. Williams, and William J. Goclce, Jr., for defendant.

CONNOR, J.

There was no error in tbe admission by tbe trial court, over objections by tbe plaintiff, of evidence offered by tbe defendant. Tbis evidence was competent as tending to corroborate witnesses for tbe defendant, and was manifestly admitted only for tbat purpose. Plaintiff’s assignments of error based upon ber exceptions to tbe admission of tbis evidence cannot be sustained.

Tbe court instructed tbe jury tbat tbe burden of proof on tbe issue submitted to tbe jury was on tbe plaintiff, and tbat unless tbe jury should find by tbe greater weight of tbe evidence tbat tbe plaintiff deposited with tbe defendant, on 3 January, 1934, tbe sum of $2,500, as alleged by ber, they should answer tbe issue, $1,500, as alleged by tbe defendant.

Tbe plaintiff excepted to tbis instruction and, on ber appeal to tbis Court, assigns tbe same as error. Tbis assignment of error cannot be sustained. Tbe instruction is manifestly correct.

Tbe plaintiff assumed tbe burden of proof at tbe trial, and did not there contend tbat tbe burden was on tbe defendant. Having voluntarily assumed tbe burden of tbe issue at tbe trial, tbe plaintiff will not be beard on ber appeal to tbis Court to assert tbat tbe burden was on tbe defendant. 4 C. J., 715.

Tbe introduction by tbe plaintiff of tbe pass book issued to ber by tbe defendant, showing a deposit by ber with tbe defendant on 3 January, 1934, of $2,500, did not affect tbe burden of proof on tbe issue. Tbis evidence made only a prima facie case for tbe plaintiff, and at most shifted tbe burden to tbe defendant to offer evidence or take tbe risk of an adverse verdict on tbe evidence for tbe plaintiff. See Bank v. Rochamora, 193 N. C., 1, 136 S. E., 259, and cases cited in tbe opinion in tbat case.

There is no error in tbe judgment tbat plaintiff pay tbe costs .of tbe action. Tbe defendant tendered judgment in its answer for tbe amount recovered by plaintiff, which tender was not accepted by the plaintiff. C. S., 896. Tbe judgment is affirmed.

No error.

DeviN, J., took no part in tbe consideration or decision of tbis case.