Boykin v. Bank of Fayetteville

24 S.E. 357, 118 N.C. 566

• Court: Supreme Court of North Carolina
• Decided: February 5, 1896
• Status: Published

Opinion

Clark, J.:

The endorsement on the paper “for collee-' tion ” was notice to the defendant that the plaintiff was the owner of the same and that the "Wilmington bank was merely an agent. Morse on Banks, Sec. 217 ; 2 lb., Sec. 598. If the defendant had actually paid the money collected to the agent before any notice from the principal, it would have been a discharge of liability ; but, here, there has been no actual payment, simply an entry of the amount on its books to the credit of the Wilmington bank, which was authority for that bank to draw, but this could be corrected by a counter entry and a notice to the Wilmington bank that the money had been paid to the principal. As the latter bank has become insolvent and has gone into liquidation, it was entirely proper that the principal should intervene and not permit the fund to go into the hands of his insolvent agent. Stevenson v. Bank, 113 N. C., 485; 2 Morse on Banks, Sec. 591; Union Bank v. Johnson, 9 Gill & J., 297. Had the defendant bank refused to pay over the money to the Wilmington bank, it is settled that the latter could not maintain an action to recover from the defendant, but the plaintiff alone could maintain the action, being the real party in interest. Abrams v. Cureton, 74 N. C., 523, which has been often cited with approval. See Womack’s Digest, No. 8. It must be noted that here there was shown no interest coupled with a trust, nor any authority devolved upon the Wilmington bank to apply the funds to any special purpose, which would have entitled that bank to have brought aii action for this fund as “ trustee of an express trust,” which was the case in Wynne v. Hech, 92 N.C., 414.

No Error.