Bank of French Broad v. Catawba Construction Co.

Brogden, J. The law imposed upon the plaintiff the burden of offering evidence to support all the essential and material elements of its cause of action. In substance the evidence tended to show that the Construction Company assigned all payments due and to become due to the "Wachovia Bank and Trust Company by virtue of a written contract between the Construction Company and said bank. The "Wachovia Bank and Trust Company was directed in the assignment of the contract “to first repay itself any and all moneys due it for money borrowed . . . and to pay to the Bank of French Broad each month the sum of $1,000 on the notes of the party of the first part (Construction Company) executed to said bank.” There was further evidence offered by the plaintiff that for some reason the city of Hickory declared the contract of the Construction Company in default. It was admitted in the answer that the work had been completed and paid for, but it does not appear who completed the work. There is evidence that in May, 1928, there was an amount of approximately $65,000 due somebody by the city of Hickory, and that this amount was not paid to the "Wachovia Bank and Trust Company under the assignment agreement. The "Wachovia Bank and Trust Company, the assignee, is not a party to the suit, and it appears that on 16 April, the Construction Company owed the "Wachovia Bank and Trust Company between $21,000 and $22,000. It appears that checks issued by the city of Hickory totaling approximately $63,000, were issued for “deposit in the "Wachovia Bank and Trust Company, Ashe-ville, North Carolina, to the account of Catawba Construction Company.” "Whether said amounts were sufficient to pay all sums due by the Construction Company to the "Wachovia Bank and Trust Company and the plaintiff during the periods when said payments were being made does not appear. Indeed, the evidence is confusing in several particulars. For instance, there is much evidence offered by the plaintiff relating to some sort of suit between the parties in the Federal Court. *104 In the last analysis, the case was tried upon the theory that the resolution adopted by the city council on 15 October, 1927, in which it was “ordered that the city manager forward all checks on estimates due to Catawba Construction Company to the Wachovia Bank and Trust Company of Asheville for deposit to the account of the Catawba Construction Company,” imposed upon the city of Hickory the duty and Obligation of paymaster to the plaintiff by virtue of the application of the principle announced in Bank v. McCanless, 199 N. C., 360, 154 S. E., 621. This position, however, is not sustained by that case. The acceptance of the assignment by the city of Hickory did not constitute an unconditional promise “to pay the assignee all funds coming into the hands of the contractor.” See, also, Trust Co. v. Construction Co., 191 N. C., 664, 132 S. E., 804; Snelson v. Hill, 196 N. C., 494, 146 S. E., 135; Trust Co. v. Construction Co., 200 N. C., 304, 156 S. E., 491. Affirmed.