Brantley v. . Collie

CoNNOR, J. The order of the court setting aside the verdict at the trial of this action, and ordering a new trial, is not reviewable by this Court. The order was made by the trial court in the exercise of its discretion. For that reason the plaintiff did not appeal from the order. In Bird v. Bradburn, 131 N. C., 488, 42 S. E., 936, it is said that the power of a trial court to set aside a verdict and to order a new trial, in its discretion, is inherent, and is necessary to the proper administration of justice, which is after all the function of a court. The power is recognized by statute (C. S., 591) ; its exercise at any time during the term at which the action was tried has been uniformly approved- by this Court. In re Beal, 209 N. C., 754, 158 S. E., 388, Likas v. Lackey, 186 N. C., 398, 119 S. E., 763, Cooper v. Clute, 174 N. C., 366, 93 S.E., 915, Abernethy v. Yount, 138 N. C., 337, 50 S. E., 696. After the verdict was set aside by the court in the exercise of its discretion, the defendant, the Planters National Bank and Trust Company, demurred ore terms to the complaint, on the ground that the facts stated therein are not sufficient to constitute a cause of action against said defendant. This demurrer was heard by the court, and after argument by counsel for both plaintiff and defendant was sustained. *232 Tbe cause of action alleged in the complaint is founded upon certain checks described therein. These checks are payable to the order of the plaintiff, and were drawn on the defendant, the Planters National Bank and Trust Company. It is alleged that the cheeks were duly presented by the plaintiff to the defendant, for payment, and that upon such ime-sentment payment was refused. It is not alleged that the defendant had accepted the checks, and thereby become liable to-plaintiff as the holder of the checks. C. S., 3171. It is well settled as the law that the payee or other holder of a check, which has not been accepted or certified by the drawee bank cannot maintain an action to recover of said bank the amount of the check. 7 C. J., 698. In Bank v. Bank, 118 N. C., 783, 24 S. E., 524, it is said that the holder of a check cannot maintain an action against the bank upon which the check is drawn, until after the acceptance of the check by the bank. In the opinion in that case, it is said: “This is the uniform line of decisions in the Federal Courts and our own, and it is sustained by the overwhelming weight of authority in other courts, though there are a few decisions in other states to the contrary. The bank is the agent of the drawer; till acceptance of the check, it has assumed no liability to the payee; its liability, if any, is to the drawer whose cheeks it has agreed to pay, if it has the drawer’s funds in hand, and for breach of that contract, it is liable to the drawer, and not to the payee.” This well settled principle is applicable to the instant case, and fully supports the judgment dismissing the action as to the defendant, the planters National Bank and Trust Company. It is not necessary to decide the question discussed by counsel in their briefs filed in this Court as to whether the contract alleged in the complaint between the defendant, the Planters National Bank and Trust Company, and the defendants; J. S. Collie and R. M. Sanford, copartners, doing business under the name of the Service Warehouse Company, is valid or not. Conceding that the contract is valid as between these defendants, it does not follow that the plaintiff can recover of the defendant, the Planters National Bank and Trust Company on the principle of Gorrell v. Water Supply Co., 124 N. C., 328, 32 S. E., 720. That case is readily distinguishable from the instant case. Neither Ballard v. Bank, 91 Kan., 91, 136 Pac., 935, nor Saylors v. Bank, 99 Kan., 515, 163 Pac., 454, are authorities in support of the contention of the plaintiff in this case. In both these cases, the drawee bank was interested in the livestock which the drawer of the check had purchased from the holder. As the judgment in the appeal of the plaintiff must be affirmed, it follows that the judgment in the appeal of the defendant, the Planters National Bank and Trust Company, must also be affirmed. The plaintiff is not entitled to recover in this action of either the defendant, the *233 Planters National Bank and Trust Company, or tbe defendant, P. H. Collie. Tbe judgment dismissing tbe action as to tbe defendant, tbe planters National Bank and Trust Company, and tbe judgment dismissing tbe cross-action of said defendant against tbe defendant, P. II. Collie, are botb Affirmed.