Williams v. Hood

207 N.C. 737

• Court: Supreme Court of North Carolina
• Decided: February 27, 1935
• Status: Published

Opinion

BeogdeN, J.

Was there sufficient evidence of statutory preference to be submitted to tbe jury ?

C. S., 218 (c) (14), prescribes tbe order of preference in tbe distribution of assets of insolvent banks. Subsection 4 thereof in part specifies as a preference “amounts due on collections made and unremitted for or for which final actual payment has not been made by the bank.”

The evidence offered in behalf of plaintiff tended to show that the checks were deposited in the bank for collection, and a receipt demanded. There was also evidence tending to show that it was agreed between the parties that the bank was to have thirty days in which to make the collection. It seems that a certificate of deposit was given the plaintiff at the time the bank took the checks. The plaintiff, however, insists that the evidence showed that this so-called certificate of deposit was intended as a receipt for the reason that the bank had positively refused to cash the checks, and it would hardly be supposed that the money would be put to the plaintiff’s credit at the very instant the bank was declining to pay it to Williams. If a jury should find, upon proper instructions by the trial judge, that the plaintiff, through her agent, deposited these checks for collection, and they were so accepted by the bank at the time, and should further find that although a certificate of deposit was issued, it was understood' and agreed between the parties that this should be treated as a receipt and to be held as such for a period of thirty days in order to give the bank an opportunity to collect the checks and notify the plaintiff of such collection when made, then upon such finding the plaintiff would be entitled to a statutory preference.

The plaintiff insisted that there was sufficient evidence of a special deposit for a special purpose warranting the application of the trust fund theory of preference. This Court, however, does not concur in this view upon the evidence appearing in the record.

The defendant relied upon the case of Morecock v. Hood, 202 N. C., 321, 162 S. E., 730. This case deals with an interpretation of the proviso in section 218 (c) (14). The reasoning and scope of the More-cock case, supra, is not decisive of the question presented by the present appeal. The Morecoclc case did not involve a collection at all, but undertook to deal with a series of transactions by means of which a depositor was undertaking to withdraw his own money from a bank.

Reversed.