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

Is the Fauquier National Bank of Warrenton, Va., intervenor, the owner of the money attached in this proceeding? Answer: "Yes."

From the judgment rendered, plaintiffs appeal. This case was before us at Fall Term, 1915, 170 N.C. 335, and is referred to for a statement of the controversy. The motion to nonsuit the intervenor was properly overruled, as the bank had introduced the draft and proved the indorsement, thereby making out a primafacie case that entitled it to go to the jury. Moon v. Simpson, supra;Worth Co. v. Feed Co., ante, 335.

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

In our view his Honor in the charge gave plaintiffs more than they were entitled to when he submitted the controversy to the jury as an open question as to whether intervenor's title was defective. As in the WorthCo. case, there is neither allegation nor proof that the title of the intervenor, which negotiated the draft, is defective within the meaning of the statute. Revisal, 2204.

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

The court might well have instructed the jury that if they believed the evidence the 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.

Cited: Whitman v. York, 192 N.C. 90 (d).

(578)