
    MAY O. KELLEY v. JOHN F. CLARK AND COMPANY, CENTRAL BANK AND TRUST COMPANY and GURNEY P. HOOD, Commissioner of Banks for North Carolina.
    (Filed 15 June, 1932.)
    1. Appeal and Error J c — Findings of fact supported by evidence are conclusive.
    The findings of -fact by the trial court, when supported by evidence, are as conclusive as the verdict of a jury.
    2. Payment C a — Where bank credits account of payee with amount of check on day before banlc closes it operates as payment by drawer.
    Where the trial court finds upon sufficient evidence that the plaintiff ordered the trust department of a bank to purchase certain stock for her and that the order was executed by a brokerage company at the instance of the bank, that upon notification to the bank of .the execution of the order the bank sent the brokerage company a check for the full purchase price and notified it of the name of the purchaser, and immediately charged, the check to the plaintiff’s account, that the brokerage company deposited the check in the same bank and that the bank credited the account of the brokerage company with the amount of the check before the end of the day’s business and notified the company of the deposit, all in accordance with the regular course of dealing between the parties, and that the bank was insolvent and closed its doors the next day: Held, the money represented by the check passed from the plaintiff to the brokerage company and was subject to its orders until the closing of the bank, and the stock so purchased was the property of the plaintiff, and where the brokerage company has refused to deliver it and has resold it and retained the money from the resale, it is liable to the plaintiff for the amount of the loss sustained by her.
    3. Ai>peal and Error J e — New trial will not he granted for harmless error.
    Exceptions relating to matters which could not have prejudiced the appellant or change the result of the trial will not be sustained.
    4. Appeal and Error J e — Where record does not set out answer to question, exception relating thereto will not he considered.
    Where the answer to a question, the subject of an exception on appeal, is not set out in the record, the exception will not be considered.
    5. Principal and Agent C b — Party dealing with agent is not affected hy secret limitation of agent’s apparent authority.
    A party paying the local office of a company by check is not affected by the local office’s lack of authority to cash the check when such limitation of authority was not known to him, and exception to the exclusion of evidence of secret limitations of the local office’s authority will not be sustained.
    Appeal by John F. Clark and Company from MacRae, Special Judge, at April Term, 1932, of Buitcombe.
    The plaintiff brought suit in the General County Court to recover $2,533.38 alleged to be the price of certain stocks purchased by her through the Central Bank and Trust Company from John F. Clark and Company and not delivered. The parties waived a trial by jury and the judge of the county court found certain facts, the material parts of which are as follows:
    3. The Central Bank and Trust Company closed its doors and ceased business on 20 November, 1930, and was immediately taken charge of by the North Carolina Corporation Commission, which has been duly succeeded in said work by the Commissioner of Banks of North Carolina.
    4. On or prior to 17 November, 1930, May 0. Kelley ordered and directed the trust department of the Central Bank and Trust Company, with which she was doing business at said time, to purchase certain stocks described in the complaint. Said order was executed by said Central Bank and Trust Company through John F. Clark and Company, stock brokers, with local offices in Asheville, N. 0., and with membership on the New York Stock Exchange, and other exchanges, by-purchasing said stocks on the New York Stock Exchange on 18 November, 1930. The Central Bank and Trust Company, through its bond department, was immediately notified of the execution of said order by said John F. Clark and Company, and of the amount of the purchase price. The purchase was duly confirmed by John F. Clark and Company who were thereupon notified by the Central Bank and Trust Company’s bond department of the name of the purchaser on 18 November, 1930; and a check signed by the Central Bank and Trust Company’s bond department, and drawn on said bank, covering the full amount of the purchase price of said stock was, on the forenoon of 19 November, sent by messenger with'letter of confirmation, by the bond department of said Central Bank and Trust Company, to said John F. Clark and Company and the amount thereof was promptly charged to the account of the plaintiff, May 0. Kelley, by said bank. John F. Clark and Company thereupon duly received and accepted said check sent it by the Central Bank and Trust Company in full payment for said stocks on 19 November, 1930, and on said date deposited same in the Haywood Street Branch of said Central Bank and Trust Company, where said John F. Clark and Company had been doing a banking business and keeping an account for a long time. Said check was, when deposited, endorsed by rubber stamp for deposit to credit of said Clark and Company and same was duly credited on said date to the account of said John F. Clark and Company sometime prior to 2 p.m. of said 19 ■ November, 1930, and before the time for closing the doors of the bank for the day; all in accordance with the custom and practice of the said John F. Clark and Company and said bank in handling similar transactions.
    ■ 5. The Central Bank 'and Trust Company, including its Haywood Street Branch, did not open its doors for business on 20 November, 1930, and was then and is now insolvent, and its affairs are being liquidated and wound up by the Commissioner of Banks of North Carolina, as aforesaid.
    6. No official or employee of the Central Bank and Trust Company had any knowledge on 19 November, 1930, that the bank would not be open for business the next day.
    7. John F. Clark and Company, and. their main office in New York City, were duly notified by said Haywood Street Branch of the Central Bank and Trust Company of the deposit to their credit of said check covering the purchase price of said -stock so purchased by May O. Kelley, and of the amount to their credit at the close of business on 19 November, 1930, by code telegram sent at 2:45 p.m. by said bank, 45-minutes after tbe closing bour of tbe bank for tbe day; all in accordance witb tbe custom and practice of tbe parties and- tbe instructions of Jobn F. Clark and Company theretofore given said bank.
    8. Tbe entire transaction was conducted in full accordance witb tbe practice and custom of Jobn F. Clark and Company in dealing witb tbe Central Bank and Trust Company.
    9. A resale of tbe stocks purchased by Jobn F. Clark and Company for tbe benefit of tbe plaintiff, was made on tbe New York Stock -Exchange witb tbe pretended permission or authority of tbe said Chief State Bank Examiner then in charge of tbe affairs of tbe Central Bank and Trust Company on or about 21 November, 1930, but without tbe knowledge, consent, authority, or permission of tbe plaintiff, or any agent of hers, and on tbe representations by an agent of defendant, John F. Clark and Company, that tbe check given for tbe purchase money of tbe said stocks bad not cleared on 19 November, 1930, which representation was false in fact and in law.
    10. On 21 November, 1930, and in ample time for said John F. Clark and Company to repurchase said stocks on said New York Stock Exchange before tbe bour for closing said exchange for tbe day, tbe said Chief State Bank Examiner having learned that said check given by tbe Central Bank and Trust Company in payment for said stocks bad cleared and bad actually been credited to tbe account of John F. Clark and Company on 19 November, 1930, contrary to tbe representations of said John F. Clark and Company in that respect, requested and directed said John F. Clark and Company to repurchase for tbe benefit of plaintiff tbe stocks so sold by them for tbe alleged reason that tbe check given for their original purchase bad not cleared, as aforesaid, but said John F. Clark'and Company wrongfully and unlawfully refused so to do and informed said Chief State Bank Examiner that tbe matter bad passed out of tbe control of tbe local office”, and that be would have to take it up witb their New York office.
    11. John F. Clark and Company did resell said stocks of May O. Kelley on tbe New York Stock Exchange under tbe circumstances and on tbe date mentioned in tbe complaint in this action, and thereupon did actually receive tbe proceeds of said sale and have wrongfully and unlawfully converted same to their own use, and now refuse to turn same over‘to plaintiff, or to -return to her tbe original purchase money paid by her for said stocks, or to make settlement of any sort witb said plaintiff.
    12! Tbe amount of said original purchase price paid by plaintiff through John F. Clark and Company for said stocks amounted to $2,533.38-, and there is no evidence before tbe court showing or tending to show the amount for which said stocks were resold by said John E. Clark and Company on the New York Stock Exchange after the purchase thereof by plaintiff, as aforesaid.
    The county court gave the plaintiff a judgment against John F. Clark and Company for $2,533.38 with interest from 19 November, 1930, and costs. On appeal to the Superior Court the judgment was affirmed, and Clark and Company excepted and appealed to the Supreme Court, assigning error.
    
      Bourne, Parker, Arledge <& DuBose for plaintiff.
    
    
      James S. Howell and Lipscombe & Lipscombe for defendants.
    
   Adams, J.

The exceptions taken by the appellants relate to the admission and exclusion of evidence and to the denial of their motion for nonsuit. In our opinion none of the exceptions should be susi-tained. The court’s findings of fact, which are supported by the evidence, are as conclusive as the verdict of a jury; and according to these findings the plaintiff’s order for the purchase of stocks was executed by John F. Clark and Company, who made the purchase on 18 November, 1930. The bond department was immediately notified and the bank sent to Clark and Company a check for the purchase price. The check was received and accepted by Clark and Company in payment on 19 November, 1930, and was credited on their account and charged to the account of the plaintiff. The money represented by the plaintiff’s' check thus passed from her to» the brokers and was subject to their order until the bank closed its doors. If the local offices had no authority to cash checks the plaintiff, who had paid the price of the stocks, was not affected by the limitation of which she had no knowledge. The brokers, having failed to account to the plaintiff, are responsible for her loss. There was no error in denying the motion for nonsuit.

The admission and exclusion of evidence which are the subject of most of the exceptions afford no adequate cause for a new trial. The first five refer to conversations with employees in the local offices, the “clearing” of checks, or to some hypothetical or collateral matter which, we think, could not have been prejudicial to the defendants, and the seventh, eighth, and ninth, to matters which would not modify the contractual relation between the plaintiff and the defendants. The answer to the question referred to in the tenth exception is not set out, and the evidence excluded subject to the eleventh and twelfth exceptions purported to show a restriction imposed by the New York office upon the local offices in Asheville to which the plaintiff was not a party. Upon an examination of the record we find

No error.  