Benthall v. Washington Hog Market, Inc.

127 S.E.2d 507 (1962) 257 N.C. 748

R. A. BENTHALL, d/b/a Benthall Stockyard
v.
WASHINGTON HOG MARKET, INC., and The Bank of Washington.

No. 164.

Supreme Court of North Carolina.

October 10, 1962.

Martin & Flythe, by Joseph J. Flythe, Rich Square, for plaintiff, appellant.

Gay, Midyette & Turner, Jackson, Rodman & Rodman, Washington, D. C., for defendant, appellee.

HIGGINS, Justice.

In Branch Banking & Trust Co. v. Bank, 255 N.C. 205, 120 S.E.2d 830, this Court reviewed a series of transactions involving drafts of other parties directed to the Bank of Washington to be charged to the account of the Washington Hog Market, Inc. The dates of the drafts and the manner of drawing and handling them were essentially the same as in this case. However, in Trust Company the rights and liabilities of forwarding banks were involved. The many pertinent cases with respect thereto are cited and discussed in the Court's opinion and in the dissent.

In the instant case, however, only the rights of the plaintiff (the drawer of the draft) and the Bank of Washington, to which it was sent for collection, are involved. The plaintiff alleged and the parties stipulated the draft was for collection. It is conceded the defendant Bank could not honor the draft without specific authority from the Hog Market. The Bank requested such authority. The Hog Market declined to give it.

The court determined the evidence failed to show either negligence on the part of the Bank or damages to the plaintiff. The court did find the evidence showed plaintiff had acquiesced in and benefitted by the Bank's method of collecting its drafts on 15 prior occasions without complaint or objection. Upon these bases the court entered judgment dismissing the action.

The burden was on the plaintiff to show both negligence and damages. Wilson v. Geigy, 236 N.C. 566, 73 S.E. 2d 487. Failure to show either is fatal. There is neither finding nor evidence the plaintiff's chances for collection were jeopardized during the six business days the bank held the draft. As between the plaintiff and the Hog Market, the draft was nothing more than a creditor's claim. "The draft procedure was adopted as a method of collecting the debt." Branch Banking & Trust Co. v. Bank, supra. The differences of opinion in Trust Co. arose over the question whether forwarding banks, as among themselves, treated the drafts as "cash" or "collection" items. Here the plaintiff alleged and the parties stipulated the draft was for collection.

We have examined and found without error all exceptive assignments which are presented in accordance with appellate procedure. Rule 19(3), Rules of Practice in the Supreme Court, 254 N.C. 797; Darden v. Bone, 254 N.C. 599, 119 S.E.2d 634; Nichols v. McFarland, 249 N.C. 125, 105 S.E.2d 294. The evidence was ample to support the findings of fact which in turn fully sustain the judgment. In the trial, we find no error and the judgment is

Affirmed.

RODMAN, J., took no part in the hearing and disposition of this case.