Brooks v. Greenville Banking & Trust Co.

Adams, J. The plaintiff brought suit to recover of the Greenville Banking and Trust Company the sum of $4.92 charged against his account for the payment of interest on the note to 2 January, 1932, and the sum of $749.63 charged against his account in payment of the remainder due on the note. In his complaint the plaintiff refers to “representations, warranties, and guaranties” alleged to have been made by the defendant’s vice-president; but as he admitted he had never heard of the warranty by a mortgagee of the title he had taken as security for a loan and as the alleged cause of action is “the unlawful and wrongful act” of the defendant in charging the two items against the appellant’s account, it is manifest that the plaintiff treats the proceeding in its essential features as an action for deceit. This becomes more apparent by reference to an excerpt in his brief: “Also, if a bank officer in the apparent scope of his duties makes false and fraudulent assertions, in reliance upon which a person acts to his injury the bank is responsible therefor.” 3 R. C. L., 456. The several elements essential to liability for deceit may be reduced to two general heads: (1) the wrongful conduct of the defendant; (2) its effect upon the plaintiff. As to the first, as was said in Robertson v. *439 Halton, 156 N. C., 215, 220, there must be a statement by the defendant (a) which is untrue; (b) the person making the statement, or the person responsible for it, either must know it to be untrue or be culpably ignorant (that is, recklessly and consciously ignorant) whether it be true or not; (c) it must be made with the intent that the plaintiff shall act upon it; and as to the effect, the plaintiff must act in reliance on the statement in the manner contemplated, and thereby suffer damage: The principle is maintained in a number of cases among the more recent of which are Peyton v. Griffin, 195 N. C., 685; Electric Co. v. Morrison, 194 N. C., 316; Rice v. Ins. Co., 177 N. C., 128; Pritchard v. Dailey, 168 N. C., 330; Tarault v. Seip, 158 N. C., 363. "We think his Honor was correct in holding that the plaintiff’s evidence is insufficient. The contention that the defendant had employed an attorney to examine the title as a basis for the loan in question is not satisfactory. The vice-president told the plaintiff he did not remember the amount of the encumbrance and referred him to the attorney for specific information of the title, but he did not engage the attorney to examine the title. Concede "Woolard’s statement that “Mr. Carson was his attorney.” The examination which the attorney referred to had been made a year before this interview and the time when the Lancaster mortgage was registered does not appear. We see no culpability upon which the action can be sustained. After his account had been charged with the interest due and the remainder unpaid, the plaintiff took an assignment of the note and mortgage which are now in his possession. Two years afterwards he first learned of the Lancaster claim. The act of the vice-president did not subject the defendant to liability. Quarries Co. v. Bank, 190 N. C., 277. Judgment Affirmed. ClakesoN, J., concurs in result.