Brunswick County v. North Carolina Bank & Trust Co.

Clarkson, J. The defendants made motions in the court below for judgment as of nonsuit at the close of plaintiffs’ evidence and at the close of all the evidence. C. S., 567. The motions were overruled and in this we can see no error. The settled rule in this jurisdiction is that upon a motion as of non-suit, the evidence, whether offered by the plaintiff or elicited from defendants’ witnesses, is to be considered in the light most favorable to the plaintiff, and he is entitled to every reasonable intendment thereon and every reasonable inference to be drawn therefrom. We think the evidence sufficient to show that the fund was a special deposit and trust fund. The evidence is set forth above rather lengthy, but the amount involved is large and the controversy important. The testimony of I. C. Wright, that was in all material aspects, corroborated by W. B. Campbell and other witnesses and plaintiffs’ evidence was to the effect that: there were two drafts aggregating $57,035. “Check No. 40916 of Am. Surety Com. to Bd. of Com. of Bru. Co. N. C., $25,924. Check No. 40917 of same Co. & date to Bd. of Ed. $31,110. Both signed by E. P. "Watson, viee-pres. Chase National Bank, New York. 15 February, ’33.” On 7 March, 1933, the following letter was written to North Carolina Bank and Trust Company at Wilmington, N. C., by Bryan and Campbell, J. W. Ruark, C. Ed. Taylor and I. O. Wright: “Gentlemen: You will recall that on 20 February, 1933, we and the representatives of the Brunswick County commissioners and board of education delivered to you checks on New York totaling $57,035 to be collected and held on special deposit, in trust, until we could settle with the board of county commissioners and the board of education and receive our shares of that money. When the items were so handled it was anticipated that the settlement of the interested parties would be completed by this time. Such settlement not having been made, you are hereby so advised and notified to continue to hold separate, on special deposit, in trust, those funds until we get our part of them and so advise you.” [140] Plaintiffs offer in evidence assignment, dated 19 March, 1933, amount $1,100, signed I. C. Wright, produced by defendants under notice, reading as follows: “$1,100. I hereby transfer and assign to the North Carolina Bank and Trust Company, as collateral security to my note of this date for that amount, eleven hundred dollars ($1,100) of the special deposit held in trust by the North Carolina Bank and Trust Company in the name of the Peoples United Bank of Southport, for $57,035, more than that part of the fund belonging to me. This 13 March, 1933. I. C. Wright.” Plaintiffs offer in evidence letter from M. E. Allen to Peoples United Bank, dated 21 March, 1933, as follows: “North Carolina Bank and Trust Company Wilmington, N. C., 21 March, 1933. Peoples United Bank, Southport, N. C. Gentlemen: We don’t think we had the right to charge against special account set up in your name a part of the currency we shipped you on 3 March, amounting to $3,802.40. We are, therefore, charging your regular account with this amount and crediting the same back to the special account, restoring same to its original figures. Trusting this meets with your approval, we are Yours truly, M. F. Allen, cashier.” I. C. Wright testified: “I had a conversation with Mr. Yates, in which he said: 'I want the Brunswick folks to have that money, and hope that they will get it, for it certainly was a special account for a specific purpose.’ This conversation took place when I went down to see if that money had been put in a special fund, if the cash had been segregated in the bank records.” The affidavit of I. C. Wright as corroborative of his testimony on the trial, was in part: “And on that arrangement the checks were endorsed and turned over to Mr. Yates for collection, and he was to hold the money in a special deposit and for this specific purpose of being apportioned out as we agreed with the commissioners and board of education. I left and came back to my office.” The defendants contend: “The principal questions in this case concern: (a) The refusal of the court to grant the defendant’s motion of nonsuit and (b) the action of the court in peremptorily instructing the jury to answer the issue in favor of the plaintiffs. Therefore, the exceptions relating to the admission of evidence are principally material as they reflect upon these two principal questions.” [141] As to tbe admission of tbe letter and tbe declarations of M. E. Allen, cashier of tbe North Carolina Bank and Trust Company (Wilmington unit) to witness L. T. Yaskell we think competent. In Pangle v. Appalachian Hall, 190 N. C., 833 (834) : “Tbe authorities in this State are all to tbe effect that what an agent says, relative to an act then being done by him within tbe scope of bis agency, is admissible as a part of tbe res gestee, and may be offered in evidence, either for or against tbe principal; but what tbe agent says afterwards, and merely narrative of a past occurrence, though bis agency may continue as to other matters, or generally, is only hearsay and not competent as against tbe principal. Johnson v. Ins. Co., 172 N. C., 142; Southerland v. R. R., 106 N. C., 100.” We think that this evidence is dum fervet opus. “So too, if tbe declaration or admissions, though relating to something that is in mere point of time passed, yet have for any reason a present interest and weight, or from any combination of circumstances assume a still subsisting importance, they will then be admissible as constituting a part of the res gestee, without regard to the fact that the precise act itself to which they relate was strictly speaking, concluded some time before.” Morse on Banks and Banking, 6th ed., Yol. 1, pp. 286-287. It is at least corroborative. The letter M. E. Allen testified to was written at Yates’ request. Under the facts and circumstances of this case, we think the evidence admissible. The real controversy in this case: was the charge of the court below correct? “Gentlemen of the jury, if you find the facts to be as testified to by all of the witnesses it would be your duty to answer the issue Yes.” We think so. In McIntosh, N. G. Practice and Procedure on page 632, we find: “If the evidence is all one way, and there is no conflict, the judge may say to the jury that, if they believe the evidence, they may find a certain verdict, but he cannot direct them that they must so find from the evidence. If the facts are admitted or established, and only one inference can be drawn from them, the judge may draw the inference and so direct the jury; but when the facts are not admitted, or more than one inference may be drawn, the case must be left to the jury to determine, with proper instructions from the judge as to the law. ‘A verdict can never be directed in favor of a plaintiff when there is any evidence from which the jury may find contrary to the plaintiff’s contention, or where there is evidence which will justify an inference contrary to such contention.’ ” Bank v. Noble, 203 N. C., 300 (302). The well established principle in this jurisdiction is thus stated in Corporation Commission v. Trust Co., 193 N. C., 696 (699): “A deposit for a specific purpose is made when money or property is delivered [142] to a bank to be applied to a designated object, or for a purpose which, is particularly defined, as, for example, the payment by the bank of a specified debt. It is neither general nor wholly special. It partakes of the nature of a special deposit to the extent that the title remains in the depositor, and does not pass to the bank. The consequence is that the money, if not applied, or if misapplied, may be recovered as a trust déposit. 7 C. J., 631; 1 Morse, Banks and Banking, sec. 185. In Morton v. Woolery, 24 A. L. R., 1107, it is said: ‘Where money is deposited for a special purpose as, for instance, in this case, where it was deposited for the stated purpose of meeting certain checks to be thereafter drawn against such deposit, the deposit does not become a general one, but the bank, upon accepting the deposit, becomes bound by the conditions imposed, and, if it fails to apply the money at all, or misapplies it, it can be recovered as a trust deposit/ ” Citing a wealth of authorities. Corporation Commission v. Trust Co., 194 N. C., 125. In Flack v. Hood, Comr., 204 N. C., 337 (340), speaking to the subject: “But where deposits are made with the distinct understanding that they are to be held by the bank for the purpose of furthering a transaction between the depositor and a third person, or where they are made under such circumstances as give rise to a necessary implication that they are made for such a purpose, the deposits become impressed with a trust which entitles the depositor to a preference over the general creditors of the bank in case the bank becomes insolvent while holding the deposits. Corp. Com. v. Trust Co., supra; Hudspeth v. Union Trust & Savings Bank, 196 Iowa, 706, 195 N. W., 378, 31 A. L. R., 466, and note; 7 C. J., 631.” Lawrence v. Hood, Comr., 205 N. C., 268. We do not think that there was such a material conflict in the testimony of plaintiffs’ witnesses and defendants that would impinge the charge of the court below. The letter of 7 March, 1933, by Bryan and Campbell and others “to be collected and held on special deposit in trust,” et cetera. No answer was made to this letter. Mr. Grainger, vice-chairman of the board of North Carolina Bank and Trust Company testified: “I have not copy of any answer in the file of the North Carolina Bank. It is the usual custom to make duplicate copies of letters. I did not tell any of the plaintiffs that I thought they ought to have this money. I told Mr. Wright on yesterday that the only interest we had was to find out legally to whom it belonged.” The assignment of I. O. Wright to secure a loan in which it was stated “to be collected and held on special deposit in trust” was a circumstance and competent. The testimony of J. W. Yates, vice-president of North Carolina Bank and Trust Company (Wilmington unit) in part was as follows: “They stated further that this money was to settle these suits and that the lawyers present had an interest in the amount, [143] in the way of fees, the amount of wbicb bad not been decided, but wbicb would be decided in a short time, and they wanted tbe proceeds of these checks to be kept and credited in a separate and distinct account from the regular and general account of tbe Peoples United Bank. Tbe Peoples United Bank was carrying at that time a general account with us. It was their wish that these funds be kept and credited in a separate account from tbe regular account. I suggested that tbe checks be forwarded for collection and when they bad been collected and tbe bank bad been so advised, tbe amount be credited to tbe Peoples Bank of Southport, special account, and they all agreed that was satisfactory, and upon that basis, I took these checks.” Tbe receipts given afterward to Mintz and Sentelle read in part: “"When collected, tbe proceeds of this check are to be credited to tbe Peoples United Bank of Southport in a special account.” This read in connection with Mr. Tates’ agreement, indicated that tbe special account was for a specific purpose. Tbe evidence instead of contradicting can be construed as corroborating plaintiffs’ evidence. Tbe checks were to be collected, tbe proceeds were not to be put in tbe “regular and general account,” but a “special account,” in other words, intact, indicating a “trust quality” and more correctly stated in plaintiffs’ evidence “special deposit in trust.” Tbe evidence on tbe entire record was sufficient to show that tbe checks were put in tbe bank to be collected and held as “special deposit in trust.” Tbe testimony of I. C. Wright was that Mr. Yates said: “I want tbe Brunswick folks to have that money and hope that they will get it, for it certainly was a special account for a specific purpose.” Mr. Tates in bis testimony said: “I never made tbe statement to Mr. Wright that this was a special deposit, but stated that it was a special account.” Tbe evidence, termed conflicting by defendants, we think it can be said on this record, is a distinction without a difference. All tbe facts and circumstances show that tbe drafts were to be collected and to be held as a special deposit and trust fund and tbe conclusion of Mr. Tates that it was a special account did not make it so, as tbe facts of tbe agreement — as stated by other witnesses and Mr. Yates himself, showed to tbe contrary. If a conflict, it is not a material one. Tbe evidence all was to tbe effect that plaintiffs, knowing tbe shaky condition of banks at that period, took every precaution to protect their clients and themselves in insisting that when tbe bank collected tbe drafts they were impressed with a “trust quality.” We do not think there is prejudicial or reversible error on tbe record. Tbe exceptions and assignments of error made by defendants cannot be sustained. For tbe reasons given, in tbe judgment of tbe court below we find No error.