Elliott v. . Smith

AlleN, J. It is not denied that tbe value of tbe mortgage deposited by tbe defendant Smith with the cashier of tbe bank was destroyed as a security and indemnity on account of the failure to register it until after two other mortgages, subsequent in date, were registered; but tbe plaintiff contends that there is no evidence of an agreement to register; that if there is such evidence it was an agreement made by the cashier personally, which would not be binding on tbe bank; and was merely left with tbe cashier to bold for Smith. We cannot determine tbe fact, and tbe only legal question presented by these contentions is whether there is evidence to support findings in favor of tbe defendant that there was an agreement to register the mortgage; that tbe agreement was made for tbe bank, and that the mortgage was deposited with the cashier for tbe bank. On the first point, as to the agreement, the defendant testified: “I turned both note and mortgage over to Mr. Peace, and told him to have the mortgage recorded. He said he would. Mr. Peace was then cashier of the bank.” On the other questions all the evidence for the plaintiff and the defendant shows that the cashier was acting for the bank at the time the agreement was made, if made at all, and that the parties understood that the mortgage was deposited with the bank. Mr. Peace, witness for the plaintiff, testified that he was cashier and active vice president of the Fourth National Bank of Fayetteville, N. C., in January, 1913, and that he handled the transaction with Mr. Smith and Mr. Wadkins. He never saw the land described in the mortgage. Wadkins wanted to borrow $300, offering as security a mortgage on real estate. He declined this, and Wadkins later came *268 in with John L. Smith, and the witness filled out the note payable to the bank; Wadkins signed it and Smith indorsed it. “I accepted the note for the bank, and Smith and Wadkins had mortgage executed by W'adkins and wife to Smith with them at the time, and these papers were attached to the note given the bank. I made no agreement with Smith to have the mortgage registered, and no registration fees were paid for this purpose. I had the mortgage registered and the bank paid the fees. Wadkins had left this community, and I was informed that his affairs were in bad shape. My recollection is that Mr. Smith was also in trouble at the time, and not knowing the outcome of those troubles, I got out the mortgage and had same recorded. From 7 January, 1913, up to the appointment of the receiver, the bank had possession of the note and mortgage. The writing in the face of the note payable to the bank is in my handwriting.” If “he handled the transaction with Mr. Smith and Mr. Wadkins”; if the note and mortgage executed by Wadkins to Smith were attached to the note payable to the bank; if all the papers were handed to the cashier, and were thereafter in the possession of the bank and the bank paid the fees for registration, as the cashier testified, there is evidence that the agreement to register was made for the bank, ,and that the papers were deposited with the bank. The consideration for the promise was the additional security for the loan. His Honor submitted the question to the jury in a charge free from objection, telling them, among other things: “Upon the admitted facts in this case, the court charges you that if you find from the evidence, and by its greater weight, that at the time Smith indorsed the note upon which this action is brought he called Mr. Peace’s attention to the fact that the mortgage was not recorded, and requested him to have same recorded; that Peace was acting in the matter as an officer of the bank; that Peace thereupon agreed to have the mortgage recorded, and that, relying upon this promise by Peace, the defendant delivered the mortgage, unrecorded, to the bank, and took no further steps toward having the same recorded on account of Peace’s promise to have this done, then it was the duty of the bank to have the mortgage recorded within a reasonable time thereafter: and it being admitted that the bank did not have the mortgage recorded until September, 1914, there was a failure of the'bank to perform its duty in this regard, and you will answer the first issue “Yes.” There is also an exception by the plaintiff to the exclusion of evidence that it was the custom of the bank to collect registration fees and to note the collection on the papers. *269 We recognize the principle that under certain conditions evidence of custom is competent in corroboration of .a witness, but in this case, as counsel for the plaintiff practically conceded, it would have no appreciable effect on the verdict, and the plaintiff had the benefit in the charge of the circumstance that no fees were paid as tending to corroborate the evidence of the cashier that no agreement was made, and there was no proof'as to whether a notation was made on the paper or not. The case has been tried under proper instructions, and in our opinion there is evidence to support the verdict, and no reversible error. No error.