111 S.E.2d 856 | N.C. | 1960
Lex A. SCHWABENTON
v.
SECURITY NATIONAL BANK OF GREENSBORO.
Supreme Court of North Carolina.
*857 Hoyle & Hoyle, Jordan, Wright, Henson & Nichols, and Karl N. Hill, Jr., Greensboro, for plaintiff appellee.
Smith, Moore, Smith, Schell & Hunter, Greensboro, for defendant appellant.
RODMAN, Justice.
Plaintiff testified he neither signed nor authorized the signing of his name to the disputed checks.
When one deposits money in a bank, the relationship of debtor and creditor is created. A debtor who pleads payment has the burden of establishing his plea. Auto Finance Co. of North Carolina, Inc. v. McDonald, 249 N.C. 72, 105 S.E.2d 193. Defendant, as a debtor, must not only show it made the debit entry; it must show the authority for making such entry. Sides v. Citizens National Bank, 246 N.C. 672, 100 S.E.2d 67; Arnold v. State Bank & Trust Co., 218 N.C. 433, 11 *858 S.E.2d 307; Bank of Brunswick v. Thompson, 174 N.C. 349, 93 S.E. 849.
The court properly overruled defendant's motion to nonsuit and correctly placed on defendant the burden with respect to the first issue. We do not deem it necessary to decide whether there was any evidence with respect to any item which would support an affirmative answer to the first issue.
There is little, if any, disagreement between the parties on the facts relating to the second issue. Certainly there is evidence from which a jury could find that monthly statements of plaintiff's account were delivered to him or to his authorized agent at the Bank or were mailed to plaintiff. The evidence tends to show that the checks were mailed to the customer if not called for by the 10th of the month, and with perhaps one or two exceptions plaintiff's statements and cancelled checks were mailed to him. The evidence is sufficient for a jury to find that these statements contained the written instruments on which defendant relied in making each charge. The envelopes in which the bank mailed most of the monthly statements were offered in evidence. Plaintiff, Ingram (his employee who cashed the forged checks), and Dwight Lohr (another employee of plaintiff) each had keys to plaintiff's post office box. Ingram customarily got the mail from the Post Office and carried it to plaintiff's office. Plaintiff was a salesman. His business frequently called him out of town for several days at a time. He testified when he examined his bank statements he did not see any of the forged checks and not until January 1955 did he learn that any forged checks had been charged to his account.
The statute, G.S. § 53-52, provides:
"No bank shall be liable to a depositor for payment by it of a forged check or other order to pay money unless within sixty days after the receipt of such voucher by the depositor he shall notify the bank that such check or order so paid is forged."
The burden is on the bank seeking the protection afforded by this statute to show delivery of the voucher to the depositor more than sixty days before the claim is made. When that fact is established, it constitutes a complete defense to a claim based on such voucher. Where several vouchers paid and delivered at different times are made the basis of a claim, the statute applies and bars not from the delivery of the first nor the last such voucher but runs against each individual voucher from the date of its delivery. The mailing of the statements and checks and the acceptance thereof from the Post Office by plaintiff in person or through his authorized agent constituted a "receipt" by plaintiff within the meaning of the statute. Once the vouchers came into plaintiff's possession, actual or constructive, by delivery to his authorized agent, the clock started, and time began to run against the depositor. It makes no difference whether he looked at his statement and failed to discover the voucher, or, if, as is here suggested, the agent was again unfaithful to his trust and extracted the vouchers from the statement before the depositor had an opportunity to examine the statement. Greensboro Ice & Fuel Co. v. Security Nat. Bank, 210 N.C. 244, 186 S.E. 362; Standard Trust Co. of New York v. Commercial Nat. Bank, 166 N.C. 112, 81 S.E. 1074; Cesaroni v. Savannah Bank & Trust Co., 90 Ga.App. 107, 82 S.E.2d 172; Holloman v. Southern R. Co., 172 N.C. 372, 90 S.E. 292, L.R.A.1917C, 416; Lynch v. Johnson, 171 N.C. 611, at pages 613 and 620, 89 S.E. 61; Atlantic Coast Line R. Co. v. Seward, 106 Fla. 75, 142 So. 881; Carter v. St. Louis-San Francisco Ry. Co., 179 Ark. 865, 18 S.W.2d 376; Fort Worth Elevators Co. v. Keel & Son, Tex.Civ.App., 231 S.W. 481; Payne v. Johnson, Fluker & Co., 27 Ga.App. 452, 108 S.E. 803; Aetna Casualty & Surety Co. v. Patton, 247 Ky. 370, 57 S.W.2d 32; McNeill v. Fidelity & Casualty Co. of New *859 York, 336 Mo. 1142, 82 S.W.2d 582; 2 C.J.S. Agency § 102, p. 1240.
There was evidence from which the jury could, as they originally did, answer the second issue "yes." The court was in error in refusing to accept the verdict and in requiring the jury to answer the issue in the negative. Based on an affirmative answer to the second issue, the jury had to determine which vouchers were called to the Bank's attention as illegal within the sixty-day period. Only such vouchers could constitute a valid claim against defendant.
New trial.
