Webster v. Wachovia Bank & Trust Co.

CONNOR, J. There was no error in tbe admission by tbe trial court, over objections by tbe plaintiff, of evidence offered by tbe defendant. Tbis evidence was competent as tending to corroborate witnesses for tbe defendant, and was manifestly admitted only for tbat purpose. Plaintiff’s assignments of error based upon ber exceptions to tbe admission of tbis evidence cannot be sustained. Tbe court instructed tbe jury tbat tbe burden of proof on tbe issue submitted to tbe jury was on tbe plaintiff, and tbat unless tbe jury should find by tbe greater weight of tbe evidence tbat tbe plaintiff deposited with tbe defendant, on 3 January, 1934, tbe sum of $2,500, as alleged by ber, they should answer tbe issue, $1,500, as alleged by tbe defendant. Tbe plaintiff excepted to tbis instruction and, on ber appeal to tbis Court, assigns tbe same as error. Tbis assignment of error cannot be sustained. Tbe instruction is manifestly correct. Tbe plaintiff assumed tbe burden of proof at tbe trial, and did not there contend tbat tbe burden was on tbe defendant. Having voluntarily assumed tbe burden of tbe issue at tbe trial, tbe plaintiff will not be beard on ber appeal to tbis Court to assert tbat tbe burden was on tbe defendant. 4 C. J., 715. Tbe introduction by tbe plaintiff of tbe pass book issued to ber by tbe defendant, showing a deposit by ber with tbe defendant on 3 January, 1934, of $2,500, did not affect tbe burden of proof on tbe issue. Tbis evidence made only a prima facie case for tbe plaintiff, and at most shifted tbe burden to tbe defendant to offer evidence or take tbe risk of an adverse verdict on tbe evidence for tbe plaintiff. See Bank v. Rochamora, 193 N. C., 1, 136 S. E., 259, and cases cited in tbe opinion in tbat case. There is no error in tbe judgment tbat plaintiff pay tbe costs .of tbe action. Tbe defendant tendered judgment in its answer for tbe amount recovered by plaintiff, which tender was not accepted by the plaintiff. C. S., 896. Tbe judgment is affirmed. No error. DeviN, J., took no part in tbe consideration or decision of tbis case.