Pate v. . Bank , 162 N.C. 508 ( 1913 )

This is an action to recover the balance of a deposit alleged by the plaintiff to have been made on 17 December, 1910, with defendant, the balance which plaintiff claims being $1,105.59. Plaintiff alleges that he made two deposits on this date, each in the amount of $1,392.35, one in the morning and the other in the afternoon of the same day. Defendant denied this allegation, and alleged that plaintiff made only one deposit of $1,392.35, in the morning of 17 December, 1910. If this is true, plaintiff is indebted to defendant in the sum of $286.76, but if plaintiff's allegations be true, the defendant owes him $1,105.59, the difference between the amount of the second deposit and the said balance of $286.76, which he would owe the defendant if his allegation is not true and which was pleaded as a counterclaim. The jury returned the following verdict:

1. Is the defendant indebted to the plaintiff, and if so, in what amount? Answer: Nothing.

2. Is the plaintiff indebted to the defendant upon its counterclaim, and if so, in what amount? Answer: $286.76.

The court instructed the jury that it was largely a question of fact. If the jury found from the evidence according to plaintiff's allegations and his account of the transaction, then the first issue should be answered "Yes, $1,105.59," and the second issue "Nothing"; but if they found the other way, their answer to the first issue would be "No," and to the second issue "Yes, $286.76." The plaintiff excepted upon the ground that the presiding judge should have charged that the entry of both deposits on the stub of plaintiff's check book by the cashier wasprima facie evidence that the deposits were made. No such instruction was requested by the plaintiff, and, in the absence of a special prayer, the omission to so charge, there being no affirmative error, is not ground for reversal, even if plaintiff would have been entitled to the instruction. McKinnon v. Morrison, 104 N.C. 354;Simmons v. Davenport, 140 N.C. 407. The instruction to which exception was taken merely meant that the entries were not so controlling or conclusive as to prevent the jury from finding, as an independent fact, that the second deposit was or was not made by the plaintiff, though the jury had the right to consider them. Plaintiff's pass book did not show the deposit, and did not correspond with the check book. A careful examination and analysis of the testimony impresses us with the belief that the two entries represented in fact but one deposit, and that, therefore, there was a mistake in the entries on the check book. It is a singular coincidence that the plaintiff, who had not counted the money before he carried it to the bank, should have had two parcels of precisely the same amount — even to the cents. The verdict appears to be correct upon the merits, and the proceedings are free from error.

No error.

Cited: S. v. Robertson, 166 N.C. 365; Webb v. Rosemond, 172 N.C. 851.