
    MOON-TAYLOR COMPANY v. GRAY-SMITH MILLING COMPANY and FIRST NATIONAL BANK OF CLEVELAND.
    (Filed 13 November, 1918.)
    1. Bills and Notes — Negotiable Instruments — Intervenor — Due Course — Burden of Proof.
    Tbe burden of proof is on tbe intervenor, claiming in attaebment proceedings to be tbe owner by endorsement of a draft, tbe subject of tbe litigation, in due course, to show by tbe preponderance of tbe evidence that be was tbe purchaser of the draft without notice of any infirmity, etc.; and when tbe endorsement has been admitted, but tbe ownership in due course has been denied, tbe question is one of fact for tbe determination of tbe jury.
    2. Bills and Notes — Negotiable Instruments — Banks and Banking — Inter-venor — Due Course — Evidence—Trials.
    Tbe intervenor bank claimed to be tbe owner of a draft, tbe subject of attachment proceedings, in due course, and tbe evidence tended to show that tbe .maker bad an active account at intervenor’s correspondent bank, where tbe draft was deposited, which sent it, with other items for collection, to tbe intervenor bank; tbe words, “collection number,” etc., appearing upon tbe draft in question, and that tbe intervenor bad received this • draft under a general agreement to charge its correspondent with interest until paid: Beld, sufficient tó take the ease to the jury upon the question of whether the intervenor took the draft as a purchaser or for collection.
    3. Dismissal and Nonsuit — Motions—Evidence.
    A motion to dismiss an action for insufficient evidence comes too late after verdict.
    4. Courts — Discretion—Verdict—Appeal and Error.
    The refusal of the trial judge to set aside a .verdict as contrary to the • weight of the evidence is within his just discretion and not appealable in the absence of its abuse.
    Appeal by intervenor from Adams, J., at May Term, 1918, of GurL-EORD.
    This is an action brought by Moon-Taylor Company, a corporation, with its principal office in Greensboro, against Gray-Smith Milling Company, a corporation, with its principal office in Wooster, State of Ohio.
    The milling company shipped a car-load of wheat to W. A. Watson & Co., of Greensboro, with sight draft attached to bill of lading, order notify A. G. Smith. Watson & Co. paid the draft, and the plaintiff attached the proceeds, the sum of $1,120.20, the plaintiff claiming that the milling company was indebted to it in the sum of $177.50 for breach of contract for commissions and for damages arising by reason of the shipment of wheat inferior in quality to that ordered. The First National Bank of Cleveland, Ohio, intervened and claimed the proceeds of the draft with bill of lading attached.
    The draft was introduced in evidence and had on its face “Collection No. 1876.” 'It was endorsed by the milling company to the .Citizens National Bank of Wooster, Ohio, and this bank endorsed it to the inter-venor.
    The deposition of William Harris was also introduced, and is in part as follows:
    “I am cashier of the Citizens National Bank of Wooster, Ohio. The Gray-Smith Milling Company had a checking account with our bank, and on 10 December, 1915, deposited the sum of $1,112.20. It was a bill of lading and draft on W. A. Watson & Co., of Greensboro, N. C., I think. Gray-Smith Milling Company was the maker of the draft. It was drawn on W. A. Watson & Co. and was payable to the Citizens National Bank at Wooster, Ohio. The draft was dated 10 December, 1915. A bill of lading was attached to the draft. It was dated 7 December, 1915, issued by the Pennsylvania Company and signed by J. R. Shenk, agent. It was issued Leaksville, Ohio. The goods were shipped to the order of Gray-Smith Milling Company, Greensboro, N. C. I sent a draft and the bill of lading to the First National Bank of Cleveland. Before sending them I gave the Gray-Smith Milling Company credit upon their account. We accepted the draft and bill of lading in the regular course of business, and credited it to tbe Gray-Smith Milling Company. The balance of the Gray-Smith Milling Company on 11 December, 1915, was $1,986.45; on 13 December, 1915, it was $1,309.39; and on 14 December, 1915, their account was overdrawn $965.74, and on the 16th they were overdrawn $2,776.76.”
    Q. “You have stated that you sent this draft and bill of lading to the First National Bank of Cleveland. Had any arrangement been previously made by which you could send such drafts and bills of lading to that bank?” A. “Yes.”
    Q. “How was that arrangement made?” A. “I wrote to the bank, asking them whether or not an arrangement of any kind could be made, •as we understood it was being done at some other places. I received a letter from them, saying they would be glad to do that.”
    “Exhibit C is my letter to H. R. Sanborn, assistant cashier of the First National Bank of Cleveland. Exhibit D is the reply of H. R. Sanborn to my letter.”
    At this point counsel for intervenor read to the jury Exhibit C and Exhibit D.
    “In December, 1915, an account existed between the Citizens National Bank of Wooster and the First National Bank of Cleveland. The volume of business done between the two banks was about $8,000 to $10,000 a day. I think our minimum balance with the First National Bank was about $10,000 a day.
    “We accepted this draft on the credit of the bill of lading attached to the draft. This deposit slip of 10 December, 1915, shows other items. The other items were checks. All these items were sent on their proper course for collection.”
    Q. “In the letter which is marked Exhibit D, I observe, it says that your bank is to be charged with interest at the rate of 5 per cent during the period’that the drafts are outstanding.” A. “Yes, sir.”
    The letterg referred to are not in the record.
    The deposition of the assistant cashier of the intervenor was on file, but was not in evidence.
    The issue submitted, and the answer thereto, are as follows:
    “Is the First National Bank of Cleveland, Ohio, the intervenor, the •owner of the proceeds of the draft attached in this cause and entitled to the possession of same?” Answer: “No.”
    The intervenor, the First National Bank of Cleveland, claimed to be the holder of the draft in due course. This was denied by the plaintiff, who alleged and contended that the intervenor was not a holder in due course, but only an agent for collecting the draft, and that the intervenor took the draft with knowledge of its infirmity and in fraud of the plaintiff’s right. This was the theory upon which the case was tried and argued to the jury.
    The plaintiff made no point as to the endorsement of the draft, and the court charged the jury that the endorsement was admitted, but the court was of opinion that upon the evidence introduced there was sufficient evidence to be considered by the jury on the question of the alleged fraud or knowledge on the part of the intervenor, i. e., whether the intervenor was a bona fide holder in due course, or whether it took the draft with knowledge of the plaintiff’s claim or as a collecting agent. Among other things, the court charged the jury as follows:
    “The burden of this issue is upon the intervenor to show by the greater weight of the evidence that it is the owner of the proceeds of the attached draft. (Jf you find by the greater weight of the evidence -that the inter-venor is the owner of the proceeds of the draft attached in his case, you will answer the issue ‘Yes.’ If you do not so find, you will answer it No.’ ”)
    The intervenor excepted to the last preceding paragraph which is in parentheses.
    The court charged the jury at length, presenting the evidence and the contentions as to whether the intervenor was a holder of the draft in due course, a purchaser, or merely a collecting agent.
    There was no other exception in the charge.
    The intervenor moved to set aside the verdict as against the weight of the evidence. The court, in the exercise of its discretion, denied the motion.
    The intervenor moved to set aside the verdict and for judgment, notwithstanding the verdict, on the ground that upon the admission of the endorsement of the draft, and upon the undisputed evidence in the case, there was nothing to be submitted to the jury and the intervenor was entitled to judgment. Motion overruled. Intervenor excepted.
    There was judgment for plaintiff. The intervenor excepted and appealed.
    Brooks, Sapp & Kelly for appellee. „
    
      Jerome & Scales for appellant.
    
   AlleN, J.

The burden was on the intervenor to show title to the property attached (Mfg. Co. v. Tierny, 133 N. C., 631), and consequently his Honor could not do otherwise than charge the jury that it must establish the fact by the greater weight of the evidence, which he did in the part of the charge excepted to.

Nor was the intervenor entitled to judgment, notwithstanding the verdict.

Tbe only admission made by tbe plaintiff was as to tbe endorsement; and tbe credibility of tbe other evidence tending to prove that tbe inter-venor was tbe bolder, in due course, of tbe draft, if uncontradicted, was for tbe jury and bad to be submitted to them.

In other words, tbe burden was on the intervenor to prove that it was-a purchaser, for value, of tbe draft, without notice of any infirmity, which is denied, not admitted by tbe plaintiff, and it moves for judgment upon tbe single admission of tbe endorsement of tbe draft by tbe Bank of Wooster, which is as consistent with sending tbe draft for collection as a sale, and particularly-so when there is written on tbe face of tbe draft “Collection No. 1876.”

Again, tbe objection that there is no evidence to sustain tbe contention of tbe plaintiff that tbe intervenor was a mere collection agent comes too late after verdict. S. v. Leak, 156 N. C., 646; S. v. Harris, 120’ N. C., 578, and eases cited, criminal and civil. If, however, tbe point bad been made in apt time it could not have been sustained.

Tbe draft bad on its face “Collection No. 1876.” Tbe cashier of the-Wooster Bank testified: “We accepted this draft on tbe credit of the-bill of lading attached to tbe draft. This deposit slip of 10 December, 1915, shows other items. Tbe other items were checks. We sent all these items on their proper course for collection.” This was sufficient without other evidence to take tbe question to tbe jury as to whether tbe intervenor bank, to which tbe Wooster Bank sent the draft, received it for collection or as a purchaser.

It also appears that by agreement between the two banks the inter-venor charged interest against tbe Wooster Bank, which is inconsistent with a purchase and tbe ownership of tbe draft. If tbe draft was. bought and paid for as tbe intervenor contends, why should there be an interest charge either way?

We find no reason for disturbing tbe verdict and judgment.

No error.  