Brooks v. Orange Rice Mill Co.

*260 Stacy, J. We think the evidence upon the issue as to whether the intervening bank was an agent for collecting the draft in question, or a purchaser thereof for value, and sufficiently equivocal, if not contradictory, to require a finding by the jury, and that his Honor’s charge, which practically amounted to a direction of the verdict, was erroneous. Of course, if the intervener held the draft as a purchaser for value, the proceeds derived therefrom could not be attached in the hands of the American Bank and Trust Company as the property of the Orange Rice Mill Company; but, on the other hand, if the intervener acted merely as a collecting agent, the proceeds would belong to the defendant, and consequently they would be subject to attachment in the hands of the garnishee Trust Company. Worth Co. v. Feed Co., 172 N. C., 335; Markham-Stephens Co. v. Richmond Co., 177 N. C., 364. The plaintiff also excepts to the form of expression, “If you believe 'the evidence testified to by the witness in the ease,” employed by his Honor in charging the jury. This language is inexact and, while in proper instances it will not be held for reversible error — and should not be unless the objecting party has in some way been prejudiced thereby— yet this Court has taken occasion, in a number of cases, to say that a different form of expression is more desirable. Holt v. Wellons, 163 N. C., 124; S. v. R. R., 149 N. C., 508; S. v. Godwin, 145 N. C., 461, and cases there cited; S. v. Simmons, 143 N. C., 613; Merrell v. Dudley, 139 N. C., 59, and cases there cited; Sossamon v. Cruse, 133 N. C., 470. For the error, as indicated, in directing a verdict on evidence from which different inferences may be drawn, we are of opinion that the cause must be submitted to another jury, and it is so ordered. New trial.