Morris Plan Industrial Bank v. Howell

CoNNOR, J. On its appeal from the judgment of the Forsyth County Court to the judge holding the Superior Court of Forsyth County, plaintiff assigned as errors in the trial of the action in the County Court, the admission, over its objections, of evidence tending to show (1) that there was an agreement in force at the time defendant paid to the *641 Lindsay Fisbel Buick Company sums of money as payments on the draft sued on in this action, between the plaintiff and said company, by which said company was authorized by plaintiff to collect said sums of money, as agent of the plaintiff; (2) that prior to the payment of said sums of money to the said company by the defendant, the Lindsay Fishel Buick Company had collected from its customers money due on notes and drafts which the said company had sold to plaintiff, and had accounted to plaintiff for said money; and (3) that an employee' of plaintiff had said to defendant that plaintiff would look to the Lindsay Fishel Buick Company for the payment of the draft on which defendant was liable to plaintiff by reason of its acceptance by him and its negotiation to plaintiff by the drawer. These assignments of error were sustained by the judge. Defendant on his appeal to this Court from the judgment remanding the action to the Forsyth County Court for a new trial, contends that the judgment should he reversed, for error in sustaining plaintiff’s assignments of error. This contention is sustained. The evidence offered by defendant at the trial of the action in the Forsyth County Court, in support of his contention that the first and second issues submitted to the jury should be answered in the affirmative, was properly admitted. An agency when shown to have existed will be presumed to have continued, in the absence of anything to show its revocation. 21 R. C. L., 822. There was no evidence tending to show that the agency resulting from the agreement between the president of the plaintiff bank and the Lindsay Fishel Buick Company, made in 1924 or 1925, with respect to the collection by said company of notes and drafts purchased by the plaintiff from said company, had been revoked. There was evidence of many transactions between the plaintiff and said company, subsequent to 1924 or 1925, and continuing to the date of the payment by defendant of the sums of money to the Lindsay Fishel Buick Company, by reason of and pursuant to said agreement. This evidence was admissible as tending to show that the agreement by which the Lindsay Fishel Buick Company was authorized to collect money for the plaintiff as its agent, was in force at the time defendant made the payments to said company on account of the draft sued on in this action. The evidence tending to show that the Lindsay Fishel Buick Company had for many years regularly collected money from its customers as payments on notes and drafts which the said company had sold to the plaintiff, and had accounted to plaintiff for said money, was properly admitted as tending to show, as defendant contended, that the Lindsay Fishel Buick Company was the agent of plaintiff with authority to collect the money paid to said company by the defendant. Buckner v. C. I. T. Corp., 198 N. C., 698, 153 S. E., 254. *642 Tbe entries on tbe books of tbe plaintiff, made by its clerks and bookkeepers, and subject to tbe inspection of its officers and directors, showing tbat all payments made to plaintiff on account of tbe draft sued on in tbis action, after 1 April, 1929, were made by tbe Lindsay Eisbel Buick Company, together with tbe fact shown by all tbe evidence tbat after 1 May, 1929, tbe plaintiff made no demand on defendant for tbe payment of tbe monthly installments on tbe purchase price of tbe automobile, tended to show tbat plaintiff knew tbat its employee bad told defendant tbat plaintiff would look to the Buick Company for tbe payment of tbe draft, and tbat defendant was relying upon tbis statement and tbis conduct of tbe plaintiff as a ratification by tbe plaintiff of tbe action of its agent, tbe Lindsay Fishel Buick Company in accepting from defendant payment in full of tbe amount of tbe draft. Tbe evidence submitted to tbe jury at tbe trial in tbe county court was amply sufficient to sustain tbe allegations in tbe answer of tbe defendant, and to support tbe verdict on which tbe judgment of said court was rendered. We find no error in tbe trial, and tbe judgment should be affirmed. Tbis action is remanded to tbe Superior Court of Forsyth County, with direction tbat tbe judgment of tbe Forsyth County Court be affirmed. Tbe judgment remanding tbe action to tbe county court for a new trial is Reversed.