| N.C. | Jan 4, 1939
Civil action instituted by plaintiffs, insurance companies, against the defendant to recover deposit balance in the defendant bank in the name of "J. O. Reilly, insurance account." The plaintiffs, executors of J. O. Reilly, admit they have no interest in said account.
The plaintiffs, insurance companies, hereinafter referred to as plaintiffs, offered evidence tending to show that J. O. Reilly was their agent in Wilmington, N.C.; that his accounts with the plaintiffs became involved and as a consequence thereof the plaintiffs required him to deposit all premiums collected in bank in a separate account, and that he was not permitted to withdraw therefrom any amount except by remittance to plaintiffs, other than a stipulated sum for expenses and his commissions; that thereafter premiums collected were deposited in the designated account; that there is now a balance in said account of $287.81; and that the defendant bank had appropriated said balance and applied the same to the personal indebtedness of J. O. Reilly, deceased.
At the conclusion of the plaintiffs' evidence defendant announced it would offer no testimony and tendered an issue to be submitted to the jury. The court declined to submit the issue tendered, and, on motion of plaintiffs, entered judgment for plaintiffs in the amount of said deposit, with interest and costs. The defendant excepted and appealed.
It is well established in this jurisdiction that the competency and admissibility of the evidence is for the court to determine, and that the weight of the testimony and the credibility of the witnesses is for the jury. When the facts are admitted judgment may be rendered thereon by the court without the intervention of a jury. When, however, the credibility of the witnesses and the weight and sufficiency of the evidence is challenged by denial or by conflicting testimony the cause must be submitted to a jury. If the defendant denies the right of the plaintiffs to recover, the evidence must be submitted to a jury even though it is of such nature as to warrant a directed verdict. Woodland v. Southgate,
Only a carbon copy of the alleged written contract between the plaintiffs and J. O. Reilly was before the court and jury. This carbon copy was offered without proper identification as a duplicate original and without adequate explanation of the failure of the plaintiffs to produce the original. It was not properly in evidence. The other evidence of *682 the plaintiffs tending to establish their cause of action consisted largely of the testimony of witnesses and of facts and circumstances testified to by them. If it be conceded that this evidence, if believed, would warrant but one reasonable inference, this did not deprive the defendant of its right to have the credibility of such evidence determined by the jury under proper instructions. Woodland v. Southgate, supra; Bank v. Stone, supra.
It is apparent that the court below was led to withdraw the case from the jury and to sign judgment for the plaintiffs upon the apprehension that his ruling that the defendant's answer did not deny the allegations contained in the second, fourth, fifth, sixth, seventh, eighth, eleventh and twelfth paragraphs of plaintiffs' complaint was correct. In answer to each of these paragraphs the defendant alleged: "This defendant denies that it has any knowledge or information thereof sufficient to form a belief." This answer is in exact accord with the pertinent statute. C. S., 519. Bankv. Charlotte,
On this record it was error for the court to render judgment in favor of the plaintiffs without first having submitted the evidence to a jury upon appropriate issues. The failure to submit the cause to a jury deprived the defendants of a substantial right. Bank v. Stone, supra.
As the case must be remanded for a new trial we have refrained, in so far as possible, from discussing the evidence in the case.
New trial.