6 S.E.2d 489 | N.C. | 1940
DEVIN, J., not sitting. In the above entitled action the Buena Vista Annex, Inc., was placed in receivership, and John Fries Blair was appointed receiver, by the Forsyth County Court. *707
The Wachovia Bank Trust Company filed claim with the receiver based on three notes of the Buena Vista Annex, Inc., aggregating $2,749.44, with interest, to which collateral was pledged by the following words in the body of each of the notes: ". . . having deposited herewith, as collateral security, for the payment of this and any other liability or liabilities of the undersigned to said bank, or which may hereafter arise, whether due or not due, however arising or evidenced, . . ." A part of the collateral thus hypothecated was sold by the receiver and from the proceeds the three notes were paid in full. There was a part of this collateral, namely, $1,000.00 and 4 shares of the Arista Mills stock remaining in the hands of the receiver after the payment of the said three notes.
The Wachovia Bank Trust Company likewise filed claim with the receiver for a fourth note of the Buena Vista Annex, Inc., for the sum of $668.75, which note was payable to bearer and was acquired by the bank and trust company in the ordinary course of business. The bank and trust company, notwithstanding said note contains no collateral pledge clause, seeks to have said note paid from the remaining collateral pledged for the payment of the three other aforesaid notes, claiming that the pledging clause in the said three notes authorized such payment.
The receiver of the Buena Vista Annex, Inc., declined to pay the claim of the Wachovia Bank Trust Company based upon this fourth note from the collateral pledged for the three other notes, whereupon appeal was taken by the claimant to the Forsyth County Court where the action of the receiver was upheld. Appeal was taken by the claimant to the Superior Court of Forsyth County, where the judgment of the Forsyth County Court was affirmed. The claimant, the Wachovia Bank Trust Company, preserved exception to the judgment of the Superior Court, and appealed to the Supreme Court.
It is agreed that the only issue between the receiver, the appellee, and the claimant, the appellant, is: "Is the Wachovia Bank Trust Company entitled to apply the $1,000.00 and the 4 shares of Arista Mills stock to the payment of the note described in Exhibit 2?" (being the fourth note for $668.75, which contained no collateral pledge clause).
We are of the opinion, and so hold, that the answer to the issue is in the affirmative.
The language of the contract contained in the collateral pledge clause of the three notes, namely: ". . . for the payment of this and any other liability or liabilities of the undersigned to said bank, or which may hereafter arise, whether due or not due, however arising or evidenced, . . ." is sufficient to include the fourth note payable to bearer, and due by the Buena Vista Annex, Inc., to the Wachovia Bank Trust Company by virtue of having come into its possession in the *708
ordinary course of business. We can hardly think of any more certain language that could have been employed by the parties to embrace this particular obligation if they had it in mind and intended at the time to secure it by deposit of the collateral securities. It was clearly not intended to confine the securities merely to the liability on the notes containing the collateral pledge clause. If such had been the intent then the quoted words were mere surplusage. Such words having been placed in the contract they must be given effect, and when made effective they include any liability of the maker, "the undersigned" to the payee or holder in due course, "said bank" by way of other notes or "however arising or evidenced." Norfleet v. Ins. Co.,
The appellee relies upon Powell v. McDonald,
The appellee likewise relies upon Bank v. Furniture Co.,
The appellee also relies upon Newsome v. Bank,
The Superior Court held that the issue between the receiver, appellee, and the claimant, appellant, should be answered in the negative. With this holding we cannot concur.
The judgment of the Superior Court is
Reversed.
DEVIN, J., not sitting.