Temple v. . Laberge

Adams, J. Tbe plaintiff prosecutes this action to recover damages for breach of contract. He alleges that he and the defendant entered into a contract by the terms of which the defendant was to sell at sundry dates certain cars of hay at an agreed price; that the defendant knew that the purchase was made with a view to a resale of the hay at a profit; that the defendant shipped only a part of the hay ordered by the plaintiff, and thereby failed to comply with the terms of his contract, in consequence of which the plaintiff suffered loss. The defendant, who was a resident of the Dominion of Canada, filed no answer. Service of *253 process was made on him by publication and a warrant was issued under which certain funds in possession of the Murchison National Bank and the Citizens Bank and Trust Company were attached. These funds were alleged to be the property of the defendant. Each of the banks filed an answer denying that it held any funds of the defendant, and alleged that the money referred to was subject to the order of La Banque Nationale of Valleyfield, Province of Quebec. This bank intervened in' the cause, and claimed the funds referred to, and upon the trial introduced evidence in support of its claim. At the close of the evidence, his Honor held that La Banque Nationale was not entitled to recover the funds in question as intervener, and submitted an issue to the jury in response to which they found the defendant indebted to the plaintiff in the sum of $4,572.25. Judgment was thereupon rendered for the plaintiff in the sum of $2,836.81, the amount of the funds attached, and the intervener and the garnishee appealed. The garnishee moved to dismiss the action on the ground that the warrant of attachment, which was issued from the Superior Court, was addressed to “any constable or other lawful officer of said county.” In Carson v. Woodrow, 160 N. C., 144, it is held that the remedy by attachment is special and extraordinary, and that the statutory provisions for it must be strictly construed, and cannot have force in cases not plainly within their terms. There the warrant of attachment was served by a constable of one of the townships of Edgecombe County, and the Court concluded that the writ of attachment and the seizure of the property under it were invalid. But in the case at bar the warrant was served by the sheriff, and on motion the court permitted an amendment, changing the address of the warrant to “the sheriff or other lawful officer of New Hanover County.” The service having been made by the proper officer, and the court having permitted the amendment, the warrant of attachment and the seizure of the property thereunder are not invalid merely because the warrant was originally addressed to “any constable” and not to the sheriff. C. S., 547; Page v. McDonald, 159 N. C., 40. We see no just ground for the intervener’s exception to its exclusion from participating in the trial on the merits of the plaintiff’s claim against the defendant. If the intervening bank was not the owner of the funds in question, upon what principle should it be permitted to interfere with litigation between the original parties to the suit? The only issue in which it had any legal interest was that of title to the funds attached. In Dawson v. Thigpen, 137 N. C., 468, it is said: “It is well settled that in an action involving the title to property an interpleader is restricted to the issue as to his title or claim to the property, and cannot raise or litigate questions or rights which do not *254 affect such titles. McLean v. Douglass, 28 N. C., 233. He does not, speaking with, accuracy, become a party to tbe action in tbe same sense and witb tbe same status as tbe original parties, or those made so pending tbe action either by tbe court ex mero motu or u|)on application.” Bank v. Furniture Co., 120 N. C., 477; Mfg. Co. v. Tierney, 133 N. C., 638; Blair v. Puryear, 87 N. C., 102; Cotton Mills v. Weil, 129 N. C., 455. We are likewise of tbe opinion that bis Honor was correct in bolding upon all tbe evidence that tbe intervener was not entitled to recover tbe funds in controversy. The drafts were not endorsed, and tbe intervening bank carried tbe burden of showing by tbe greater weight of tbe evidence that it bad title to tbe attached property. Tbe manager testified, it is true, that La Banque Nationale is tbe sole owner of tbe drafts, and if they were paid tbe amount would go to tbe bank and not to tbe defendant; but the first statement is in tbe nature of a legal conclusion, and evidently tbe defendant may be charged back witb tbe amount of tbe drafts, although tbe money attached is not recovered. Indeed, tbe evidence in its entirety seems to be susceptible of only one construction — that is, that tbe drafts were discounted in tbe regular course of business for tbe benefit of tbe defendant witb tbe right to charge back to him any amount not recovered by tbe discounting bank. There is no evidence that tbe defendant was to be held liable by reason of bis indorsement of tbe drafts, for they were not indorsed. Tbe principle applicable is stated as follows: “The rule prevails witb us, and it is supported by tbe weight of authority elsewhere, that if a bank discounts a paper and places tbe amount, less tbe discount, to tbe credit of tbe indorser, witb tbe right to check on it, and reserves tbe right to charge back tbe amount if tbe paper is not paid, by express agreement or one implied from tbe course of dealing, and not by reason of liability on tbe indorsement, tbe bank is an agent for collection and not a purchaser. Packing Co. v. Davis, 118 N. C., 548; Cotton Mills v. Weil, 129 N. C., 452; Davis v. Lumber Co., 130 N. C., 176, and Bank v. Exum, 163 N. C., 202.” Worth Co. v. Feed Co., 172 N. C., 342. We find no error that entitles tbe intervening bank or tbe garnishee to a new trial. No error. Stacy, I., not sitting.