Elm City Lumber Co. v. Childerhose

AlleN, J. Tbe first and third exceptions, to the "refusal to permit a witness to answer certain questions, cannot be considered, because there is nothing in the record to show what evidence would have been elicited (Stout v. Turnpike Co., 157 N. C., 366), and the fifth, sixth, and seventh exceptions are abandoned, because not discussed in the brief. Rogers v. Mfg. Co., 157 N. C., 484. The question intended to be presented by the second exception does not clearly appear, as no evidence had been introduced at the time the exception was taken that any draft had been charged back; but if, as indicated in the brief of the appellant, the draft referred to was not one of those the proceeds of which are in litigation, and the evidence was offered to prove the custom of the Bank of Ottawa, it was incompetent for that purpose, as one item among many others differing from it cannot establish a custom. It also appears that the plaintiff afterwards had the benefit of the evidence, as sheets from the books of the bank were introduced showing the item. The evidence offered to prove the custom among the banks of New Bern to charge back drafts returned unpaid could not affect the rights of the Bank of Ottawa, and the witness stated that he knew nothing of the custom in Ottawa. The other exceptions are to parts of the charge to the jury, which we have set out, and in which we find no error. The definition of a holder in due course is taken almost literally from section 2201 of the Eevisal, and the statement of the rights of a purchaser of a draft with bill of lading attached is in accord with the principles declared in Mason v. Cotton Co., 148 N. C., 498, and in other decisions. His Honor did not charge the jury that the bank was a holder in due course if it took the drafts for collection, and, on the contrary, told the jury: “The plaintiff, on the other hand, contends that under this evidence you ought to find that the bank merely took the drafts and bills of lading as a collecting agent, and that it never acquired any property by way of security for anything advanced, if anything was advanced, and, taking them that way, it had no property right in them, and, having ■ no property right in them, it had no interest in the hay or the proceeds from the hay; and the plaintiff calls your attention to the testimony of Mr. Burgess, that the charge upon this transaction was but $1.40, and contends from that you ought to find that that amount ’was paid, not as a discount on the purchase of the paper, but was merely a collect [41] ing fee or commission for collecting, and nothing more. If yon are satisfied from the evidence that tbe bank merely took the paper for collection and charged a commission for collecting, then that would not be a purchase and the bank would not be the holder in the ordinary course of business, because in order to become holder it must have paid, as it contends, the difference between this charge and the face value of the drafts and credited the amount to Childerhose & Pratt, who must have drawn the money out of the bank. If they took up the paper for collection and charged a commission for collection and placed the proceeds to the credit of Childerhose & Pratt, and you are satisfied, from all the evidence, that it was the custom of the bank that when drafts were not paid, which had been so obtained, to charge them back to the drawer, that would be evidence for you to consider upon the question of whether or not this was a mere transfer for collection or a transfer in order to secure the bank for money advanced.” We have carefully considered the exceptions taken, and find No error.