Equitable Life Assurance Society of the United States v. Lazarus
175 S.E. 705
N.C.
1934
Check Treatment
*69 BeogdeN, J.

Was there any competent evidence that tbe Guaranty Title and Trust Corporation was the agent of the Seaboard Citizens National Bank, trustee, holder, in making collections upon the Lazarus notes ?

Manifestly, if the Guaranty Title and Trust Corporation was the collecting agent of the Seaboard Citizens National Bank, the holder, then the payment by Lazarus to such agent constituted payment to the holder. A jury trial was waived, and it was agreed by all parties that the judge should find the facts. Pursuant to such stipulation the judge answered certain issues appearing in the record. There was evidence to support the answers so made to such issues. Consequently, nothing else appearing, the judgment should be affirmed, because “parties can have their causes tried by jury, by reference, or by the court. They may waive the right of trial by jury by consenting that the judge may try the case without a jury, in which event he finds the facts and declares the law arising thereon. . . . His findings of fact are conclusive, unless proper exception is made in apt time that there is no evidence to support his findings or any one or more of them. . . . The findings of fact by the judge, when authorized by law or the consent of parties, are as conclusive as when found by a jury, if there is any evidence.” Buchanan v. Clark, 164 N. C., 56, 80 S. E., 424. See, also, McIntosh’s North Carolina Practice and Procedure, sec. 517. However, the record discloses that at the conclusion of all the evidence and argument of counsel “the court held that as a matter of law . . . the payment to the Guaranty Title and Trust Company did not operate to discharge the bonds held by the Seaboard Citizens National Bank as trustee.” Therefore, if there is any evidence of agency in the record, the judgment was improvidently entered, and must be reversed.

This Court is of opinion that there is such evidence of agency. The trust indenture between the Guaranty Corporation and the bank is an intricate and voluminous document, disclosing in minute detail the whole scheme of lending money and the business methods and procedures involved in the multitude of transactions. By virtue of the indenture the bank received hundreds of notes, including those of Lazarus. Attached to these hundreds of notes were more hundreds of interest coupons. Indeed, the trust agreement tends to show that the Guaranty Corporation selected the bank to act as trustee and was at all times a depositor of the bank. From the volume of business involved it would not be unreasonable to infer that the bank regarded the trust indenture as a happy and profitable banking connection. The trust document expressly empowered the trustee to employ agents and to pay them such reasonable compensation as it deemed proper. Moreover, the bank, as trustee, was authorized to appoint the Guaranty Company “its agent *70 for the collection of any moneys due to the trustee ... on the securities pledged hereunder.” Furthermore, it was also provided that if the Guaranty Company “shall refuse ... or become unable to act as the agent for the trustee, for the collection of moneys due to the trustee,” . . . then such trustee was to receive “fair and reasonable compensation for any services it may render.”

For a period of practically three years Lazarus made payments of interest to the Guaranty Corporation. The bank received this money without protest or inquiry and turned over to the Guaranty Corporation such interest coupons. In addition, Lazarus paid one principal note of $500.00. The bank received this money without protest or inquiry and turned the note over to the Guaranty Corporation. The bank knew at all times for approximately three years that the Guaranty Corporation was collecting principal and interest from Lazarus and others, and that it maintained a collection department for the express purpose of collecting principal and interest from hundreds of borrowers whose notes were in the possession of the bank. Indeed, Brown, the trust officer of the bank, said on cross-examination: “I presume that the Guaranty Title and Trust Corporation was making collections on these collaterals. . . . I had a presumption of what was going on. ... I presumed they were making them.”

While the authorities are not in agreement upon the question, this Court has spoken in several cases. The latest utterance is General Motors Acceptance Corporation v. Fletcher, 202 N. C., 170, 162 S. E., 234, in which it is held “that where there is evidence tending to show that an alleged agent has reqieatedly collected money owed to the alleged principal, and that the alleged principal has received the money and applied it to the debts, the inference is permissible that the agreement to that effect had been made by and between them, and that the evidence is sufficient to make out a prima facie case of agency.” See, also, Buckner v. C. I. T. Corporation, 198 N. C., 698, 153 S. E., 254; Credit Co. v. Greenhill, 201 N. C., 609, 161 S. E., 72.

The trustee relies upon Baldwin v. Adkerson, 156 Va., 447. The opinion discusses the question with great clarity and assembles the authorities upon the various aspects of law involved. The Court said: “There are many cases in which the course of dealings of the holder of a note himself with a bank or loan broker at whose office the note was payable has been held to give the bank or loan broker implied authority to receive payment of the note as the agent of the holder, even though the bank or broker did not have possession of the note. (Citing many authorities.) But these cases have no application to the case at bar. No course of dealings between Adkerson and Guaranty Title and Trust Corporation are shown, and the record discloses no transaction or inter *71 course of any kind between these parties, except the bare fact that Adkerson purchased this one note, and perhaps that he presented one interest coupon at its office, where it was payable, and received payment thereof.” Obviously, the decision is correct, and in accordance with the weight of authority upon the facts disclosed by the opinion.

As there is competent evidence of agency, and as the trial judge answered the issues as a matter of law, it necessarily follows that the judgment so rendered must be reversed.

Reversed.

ScheNCK, J., took no part in the consideration or decision of this case.