Ares Distilling Co. v. Mutual Aid Banking Co.

Bkoww, J. The plaintiff, a manufacturer of distilled whiskeys, located in the city of Baltimore, Maryland, shipped whiskey to parties living in the city of New Bern, N. C., and sent drafts with bills of lading attached to the defendant in New Bern for collection. This suit was brought by plaintiff to recover from the defendants the balance of the money which they had collected but not remitted to plaintiff. A compulsory reference was ordered at the May Term, 1911, to which plaintiff excepted, and to the report of the referee plaintiff again excepted and demanded a jury trial. The referee .reported that defendants had in their hands a balance due •plaintiff of $108.55, but that plaintiff could not recover same because the transaction was immoral. Upon the trial in the Superior Court, plaintiff offered evidence that the total amount of drafts sent by plaintiff to defendants was $11,105.50, of which $10,528.45, including drafts returned, was remitted or accounted for, leaving a balance due of $577.05. This evidence was not controverted or denied in any way. The testimony 'of Allenach, the only witness introduced, was not even attempted to be impeached by cross-examination. His Honor erred in refusing the prayer. *68 It is immaterial that the drafts collected by defendant bank for plaintiff as its agent were drawn on persons to .whom plaintiff had shipped liquor. The defendant was not so highly moral that it refused to collect and receive such money. Having collected it, the law will not allow the defendant to appropriate it to its own use. S. v. Fisher, 162 N. C., 550; Jewelry Co. v. Joyner, 159 N. C., 644. This subject is fully discussed in this last case, and the leading authorities are collected and cited, -universally holding, in the language of Justice Buller in Farmer v. Russell, 1. Bos. and P., 296: “When it appeared that the agent had received money to the plaintiff’s use, it is immaterial whether the money was paid on a legal or illegal contract.” New trial.