Moon v. . Simpson

Brown, J. Tbis case was before us at Fall Term, 1915, 170 N. C., 335, and is referred to for a statement of tbe controversy. Tbe motion to nonsuit tbe intervenor was properly overruled, as tbe bank bad. introduced tbe draft and proved tbe indorsement, thereby making out a prima facie case that entitled it to go to tbe jury. Moon v. Simpson, supra; Worth Co. v. Feed Co., ante, 335. Tbe law applicable to tbis case is clearly stated by Mr. Justice' Allen in tbe opinions in those two cases, and need not be repeated here. . Tbe assignments of error relating to tbe evidence are without merit, and need not be discussed. In our view bis Honor in tbe charge gave plaintiffs more than they were entitled to when be submitted tbe controversy to tbe jury as an open question as to whether intervenor’s title was defective. As in tbe Worth Go. case, there is neither allegation nor proof that tbe title of tbe intervenor, which negotiated tbe draft, is defective within tbe meaning of tbe statute. Eevisal, 2204. There is no evidence that tbe intervenor held tbe draft for- collection or that tbe proceeds were tbe property of Simpson, tbe indorser. On the contrary, all tbe evidence tends to prove that tbe intervenor purchased tbe draft and placed tbe proceeds to Simpson’s credit, who at once drew them out. Tbe court might well have instructed tbe jury that if they believed tbe evidence tbe indorsement was properly proved, and there being no allegation or evidence of any defect in intervenor’s title, it was entitled to recover. No error.