At the close of plaintiffs’ evidence and at the close of all the evidence, the defendant in the court below made motions for judgment as in case of nonsuit. O. S., 567. The court below overruled these motions and in this we can see no error.
The evidence which makes for plaintiffs’ claim, or tends to support their cause of action, is to be taken in its most favorable light for the plaintiffs, and they are entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.
The plaintiffs contend that the appeal was premature. In the judgment is the following: “And it further appearing from admissions of defendant’s counsel and the court finding therefrom that a return of said bonds in kind is now impossible, in the exercise of its discretion the court directs that this cause be retained for trial before a jury hereinafter to be impaneled the following issue: ‘What was the value of the bonds described in the complaint on 9 June, 1934?’ ”
Conceding but not deciding that the appeal was premature, yet we can see no harm or prejudice to plaintiffs in deciding the case on its merits.
In McAuley v. Sloan, 173 N. C., 80 (81-2), where the judge tried certain issues and in his discretion reserved others, it was said: “This is a matter which will depend very much upon the circumstances of each *420particular case, and in tbe absence of an abuse of sucb discretions this Court will not disturb the action of the judge.” Bank v. Evans, 191 N. C., 535 (538).
The principal questions involved in this case require the determination of the burden of proof in a suit to recover from a bank Liberty Bonds deposited therewith for safekeeping and the application of the statute of limitations to such an action. These were answered in the court below in favor of the plaintiffs, and in this we find no error.
All the evidence was to the effect that the receipts were given for the Liberty Bonds by the Bank of Sanford. One receipt provided that it “must be surrendered when bond is delivered,” and another stated that the bond was received for “safekeeping in the bank vault.” There was evidence tending to show that the bonds were in the possession of the Page Trust Company after its purchase of the Bank of Sanford. There was further evidence tending to show that no specific claim for these bonds was filed with the liquidating agent because his representative informed one of plaintiffs that, as the bonds were held for safekeeping and were not deposits, it would not be necessary to file a claim. There was evidence, likewise, tending to show that after plaintiffs had qualified as executors of the estate of J. R. Bright, who allegedly deposited the bonds originally, and after the liquidating agent had taken over the assets of Page Trust Company, said liquidating agent, on 9 June, 1934, wrote plaintiffs denying their present claim for Liberty Bonds in the value of $2,400. Thereafter, and within three years after the denial of this claim, the original summons in this action was issued on 20 February, 1937.
The deposit of the Liberty Bonds herein, as found by the jury, constituted a special deposit for safekeeping and embodied a duty to hold and deliver the specific bonds.
In Corporation Commission v. Trust Co., 193 N. C., 696 (699), is the following: “A special deposit is a deposit for safekeeping, to be returned intact on demand — a naked bailment, the bank acquiring no property in the thing deposited and deriving no benefit from its use. The title remains in the depositor, who is a bailor and not a creditor of the bank. Boyden v. Bank, supra (65 N. C., 13); 3 R. C. L., 517; 7 C. J., 630.” Edwards v. Culberson, 111 N. C., 342. See Bank v. Waggoner, 185 N. C., 297 (302); Proctor v. Fertilizer Co., 189 N. C., 243; Wood v. Bank, 199 N. C., 371; Cocke v. Hood, Comr., 207 N. C., 14 (18); Speight v. Trust Co., 209 N. C., 563.
All the evidence was to the effect that the first receipt was given for the Liberty Bonds by the Bank of Sanford as follows: “This receipt must be surrendered when bond is delivered,” also the other receipts for “safekeeping in bank vault.” The above property to be delivered “only *421to person named bereon or legal representative upon return of tins receipt.” It was in evidence to the effect that these bonds were in the possession of the Page Trust Company after its purchase from the Bank of Sanford. The court below charged that under the circumstances mentioned the burden of proof as to this phase of the case rested on the defendant in this action. ¥e can see no error in this. Proctor v. Fertilizer Co., 189 N. C., 243 (245); Furst v. Taylor, 204 N. C., 603; Davis v. Dockery, 209 N. C., 212; Stephenson v. Honeycutt, 209 N. C., 701.
In 5 Zollman, on Banks & Banking, sec. 3115, pp. 121-2, we find: “In most, if not all, cases the depositor will have little or no information as to how the loss occurred. Ordinarily, he can only prove that there has been a loss. Therefore, evidence by him of the delivery of the deposit to the cashier, that the cashier had authority to accept it, and that it was not returned to him on his demand places the burden upon the bank to prove that it exercised the proper degree of care in safekeeping the property. The burden of showing the circumstances of the loss, due care, or delivery to the customer or to a successor bank, or that the deposit was made for an illegal purpose, or of establishing a good and valid reason for the nonreturn of the deposit, is on the bank. A demand on the bank for bonds held on special deposit and its refusal to deliver them, with no other explanation than the statement that it has no such bonds in its possession, is prima facie evidence of their loss by the bank’s negligence. The statement of the bank that it has lost or mislaid the bónds in question will not absolve it.”
We do not think that plaintiffs’ cause of action is barred by the 3-year statute of limitations J. R. Bright, plaintiffs’ testator, died on 8 May, 1929. Plaintiffs qualified as executors on 10 July, 1929. Defendant took over the assets of the Page Trust Company on 20 May, 1933. S. J. Hinsdale, Liquidating Agent of defendant, wrote plaintiffs, on 9 June, 1934, as follows: “I have before me your claim for preference against the Page Trust Company for $2,400 arising from Liberty Bonds left with the Bank of Sanford for safekeeping. In the opinion of the Liquidating Agent this does not constitute a claim against Page Trust Company. The claim is therefor denied.” The original summons in the action was issued on 20 February, 1937 — within three years of the repudiation or disavowal of the trust.
N. O. Code, 1935 (Michie), sec. 441 (4), is as follows: “Limitations— Within three years an action — (4) For taking, detaining, converting or injuring any goods or chattel, including action for their specific recovery.”
5 Zollman, on Banks & Banking, supra, part sec. 3116, p. 123, says: “Where a bank receives a special deposit to be surrendered on demand, the statute of limitations begins to run against the right of action for a breach of the contract to return only from the time of demand.”
*422In Robertson v. Dunn, 87 N. C., 191 (195), it is written: “We take the distinction to be, that if it is an express trust or agency, a demand is necessary to terminate the trust and set the statute in operation; but if it is only an implied or constructive trust or agency, then no demand is necessary, but the statute is put in motion as soon as the property is taken into possession or the money received.” County Board v. State Board, 107 N. C., 366.
In Rouse v. Rouse, 176 N. C., 171 (173), we find: “It is a general rule that, as between trustee and cestui que trust, lapse of time is not a bar to an action, but where the trustee disclaims the trust, to the knowledge of the cestui que trust, either expressly or by acts necessarily implying a disclaimer, and the trustee remains in unbroken possession, lapse of time may be relied upon as a defense. McAden v. Palmer, 140 N. C., 258; Williams v. Church, 1 Ohio St., 478; Coxe v. Carson, 169 N. C., 137.” This matter is fully set forth by Barnhill, J., in Teachey v. Gurley, ante, 288 (293).
Is the plaintiffs’ cause of action barred by the ninety days statute, either for failure to bring the suit in ninety days after the time designated for presenting claims, or in ninety days after the claim was presented and disallowed upon notice to plaintiffs? We think not, under the facts and circumstances of this case. N. C. Code, supra, sec. 218 (c), et seq.
It will be noted that sec. 218 (c), supra, says: “Shall forthwith take possession of such bank and all of its assets and business.” One of the bank officials was receiving proof of claims from Numa R. Bright, and two other members of the family who filed their claims. The following occurred:
“Q. When you turned that over what occurred ? Ans.: This party asked me if that was all and I said we have got some bonds here that we have been trying to locate, will I have to file for them, and he said, no, asked me how they were left, and so forth. (Objection; overruled; exception.) And I told him they were just left there for safekeeping and he said, ‘It is not necessary to file any proof of claim for them. We will turn the bonds over when we find them.’ ... I filed three claims for some deposits. The man with whom I filed the claims said that it wasn’t necessary to file anything for the bonds. It was the same man with whom I was directed to file my claim for deposits that told me that. At that time there was no discussion about the numbers of the bonds or the kind of bonds. He just told me that if they were left there for safekeeping I would not have to file; that when they got the bonds to call in some day and they would get up the bonds and turn them over tome. (Objection; overruled; exception).”
*423We tbink tbe exceptions cannot be sustained if tbe statute was applicable. Tbe plaintiffs were lulled into inaction and defendants cannot take advantage of tbeir conduct. In Glenn v. Farmers Bank, 80 N. C., 97 (100), it is said: “Tbe appellant, in tbe language used by tbe Court in tbe last mentioned case, Vas not guilty of willful lacbes or unreasonable neglect,’ be ought not to be concluded by tbe decree from tbe assertion of bis right, as a creditor, to share in tbe common fund.” Cecil v. Henderson, 121 N. C., 244 (247); Thomas v. Conyers, 198 N. C., 229; Bank v. Winder, 198 N. C., 18.
In construing portions of tbe New York Act, which are substantially similar to ours, tbe New York courts have held that a bailor (such as plaintiffs) is not a “creditor” or “claimant” within tbe meaning of tbeir Banking Acts, and is not required by that law to file a claim before bringing suit. Some of tbe decisions are as follows:
In re Howell's Will, 237 App. Div., 56, 260 N. Y. Supp., 510, 512: “Tbe petitioner urges that tbe procedure laid down in tbe banking law does not apply because tbe bank held this money as bailee and never acquired title thereto; that tbe relation of debtor and creditor never existed between tbe bank and tbe depositor; that no question of priority of claims is involved here. Eespondents insist that this is a reclamation proceeding and not one to determine the validity of a claim against tbe bank, and that, therefore, tbe successor trustee is entitled to immediate possession of this trust fund without waiting for tbe liquidation of tbe assets of tbe defunct institution. If tbe title to tbe money never rested in tbe trust company, tbe court has inherent power to order its delivery to tbe successor trustee, and tbe provisions of tbe banking law have no bearing on tbe proceeding. . . . Tbe determination of this appeal, therefore, depends upon tbe nature of tbe relationship which exists between tbe bank and tbe trustee.”
In In re Bank of Cuba, 198 App. Division, 733, 191 N. Y. Supp., 88, it was held that tbe New York Banking Law with respect to tbe presentation of claims of creditors against a bank in liquidation related to tbe assets of tbe bank only, and conferred upon tbe Superintendent of Banks no authority to withhold property to which it bad no title and upon which it bad no lien; that in that case no title to tbe drafts in question passed to tbe bank, but remained in tbe applicant for a return of draft or its proceeds, and it was erroneous to refuse tbe relief sought on tbe grounds that applicant’s only remedy was afforded by tbe provisions of tbe Banking Law with respect to tbe presentation and allowance of claims, etc. Re Vavoudis, 141 Misc., 823; 252 N. Y. Supp., 779, affirmed; 223 App. Div., 672, 249 N. Y. Supp., 87; Re McCarthy’s Funds, 139 Misc., 147, 248 N. Y. Supp., 335; Campbell v. Vining, 101 Fla., 939.
*424Tbe defendant cannot maintain tbe plea of tbe statute of limitations, either 90 days or 3 years. Tbe language of tbe receipt is, “Must be surrendered when bond is delivered.” Certain bonds “For safekeeping in bank vault,” etc. Tbe Bank of Sanford was a trustee of an express trust and its successor likewise, as there was plenary evidence to that effect and tbe jury so found. Tbe 90-day statute is inapplicable. If it were it would be inequitable and unconscionable for defendant to be allowed to set same up as a defense.
Tbe last clause of tbe will of I. R. Bright is as follows: “Then all that I have not mentioned is to be Numa Bright & bis mother.” Tbe Liberty Bonds were not mentioned in tbe will, therefore they became tbe property of N. R. and Eugenia Bright, and it was so found by tbe jury. Kidder v. Bailey, 187 N. C., 505. They are entitled to recover for same and tbe issue so says. Under tbe facts and circumstances of this case tbe word “executors” was treated as surplusage. Tbe issue submitted was in tbe nature of an amendment to that effect. Bernard v. Shemwell, 139 N. C., 446 (447); Trust Co. v. Williams, 209 N. C., 806 (809); Morgan v. Turnage Co., 213 N. C., 425, 426; Ins. Co. v. Locker, ante, 1 (2). On this aspect we see no prejudicial error. We think there was ample evidence to be submitted to tbe jury on all disputed issues. Miss Judith M. Ross testified: “After Mr. Dyer came to Page Trust Company, I saw Mr. Dyer and Mr. Bright handling a transaction and I think closed out tbe bonds. There were no more bonds seen after that.” Tbe court below left this aspect to tbe jury for determination. It may be noted that tbe W. P. Dyer, Jr., spoken of in this testimony was living at tbe time and was never called as a witness. We see no error in tbe court below in overruling tbe motion of defendant for judgment non obstante veredicto. We think tbe court below, in an able and careful charge, explained tbe law applicable to tbe facts, and C. S., 564, was fully complied with.
On tbe entire record we see no prejudicial or reversible error.
No error.