Citation Numbers: 2 S.E.2d 848, 215 N.C. 665
Judges: DEVIN, J.
Filed Date: 5/24/1939
Status: Precedential
Modified Date: 1/13/2023
The plaintiff instituted this action to recover the balance due on two certain notes executed by defendants and to foreclose a deed of trust on real property given to secure the same. The defendants admitted execution of the notes and deed of trust, and alleged further that they deposited with plaintiff a large amount of stocks and bonds as collateral security therefor, together with deed and deed of trust conveying certain real property in Meriden, Connecticut; that the value of said property was largely in excess of any indebtedness due plaintiff, and that plaintiff has disposed of all of said property and has failed to account for the personal property so placed in its hands, or for the proceeds of sales of defendants' real and personal property which should have more than discharged defendants' debt.
Upon the trial, issues were submitted to the jury to determine (1) the amount of the indebtedness of defendants on the notes sued on, and (2) whether in making disposition and sale of defendants' property the plaintiff exercised reasonable diligence and good faith with respect thereto. The jury answered both issues in favor of the plaintiff, and from judgment on the verdict, defendants appealed. Appellants' principal assignment of error relates to the judge's charge to the jury on the second issue with respect to the burden of proof. The trial judge charged the jury upon that issue that the burden of proof was upon the defendants to satisfy the jury by the greater weight of the testimony that the plaintiff bank did not exercise reasonable diligence and good faith in the disposition of the described property. In this we think there was error entitling the defendants to a new trial.
The plaintiff having admitted the receipt of the property as collateral security for the defendants' notes, it occupied a fiduciary relationship in connection therewith, and when it was testified by the president of plaintiff bank that all of this property, real and personal, had been disposed of at private sale for much less than its face value and for less than defendants' notes, the duty was imposed upon the plaintiff to show that it acted with reasonable diligence and good faith in the disposition of said property and in the application of the proceeds to the discharge of defendants' notes. Cook v. Guirkin,
Ordinarily, when a defendant sets up an affirmative defense or pleads payment in whole or in part, the onus of establishing such affirmative defense rests upon the defendant. Wilson v. Casualty Co.,
In Bank v. Knox,
In Bright v. Hood, Commissioner of Banks,
As the case goes back for a new trial, we deem it unnecessary to discuss other matters debated in the briefs and on the argument.
New trial.
Davis v. . Dockery , 209 N.C. 272 ( 1936 )
Bright v. . Hood, Comr. of Banks , 214 N.C. 410 ( 1938 )
Bank v. . Knox , 187 N.C. 565 ( 1924 )
Walker v. . Parker , 169 N.C. 150 ( 1915 )
Cook v. . Guirkin , 119 N.C. 13 ( 1896 )
Meredith v. . R. R. , 137 N.C. 478 ( 1905 )
Wilson v. . Casualty Co. , 210 N.C. 585 ( 1936 )