Plaintiff, a citizen of this State, having a cause of action against the Mutual Grain Company, a foreign corporation, instituted this suit in the Superior Court of Wake County and sought to obtain service by attaching the proceeds of a certain draft in the hands of the Bank of Wake, Wake Forest, N.C. it being alleged that said funds belonged to the defendant.
Thereafter, at the December Term, 1920, the Merchants National Bank of Richmond, Va., was allowed to intervene and to set up its claim of title to the proceeds of said draft.
Upon the issue thus raised, there was a verdict and judgment in favor of the plaintiff. The intervener appealed. Appellant excepts because his Honor instructed the jury that the burden was on the intervener to make out its claim and to show title to the property attached. We find no error in this instruction. Moon v. MillingCo., 176 N.C. 410. But when it was shown that the draft, with bill of lading attached, was duly executed and in the possession of the intervener, made payable to its order, the presumption arose that it was a holder in due course. C. S., 3040; Mfg. Co. v. Tierney, 133 N.C. 635, and cases there cited.
There was further evidence tending to show that the bank was the holder and purchaser of the draft for value, without notice of any defenses or equities. This was sufficient to establish, prima facie, a case of bona fide ownership; and intervener was entitled to have the jury so instructed. 1 Dan. on Neg. Inst., sec. 812.
On the other hand, the plaintiff contended that the intervener was not a purchaser of the draft for value, but held the same merely as collecting agent for the defendant Mutual Grain Company. Feed Co. v. Feed Co.,182 N.C. 690. Touching this phase of the case, the material evidence was as follows: On 31 July, 1920, the Mutual Grain Company borrowed $1,909.10 from the Merchants National Bank of Richmond, Va., executing a demand note therefor, and giving to the bank, at the same time, as collateral security to said note, an equal amount in drafts, including a draft on the plaintiff for $1,185. This was sent to the Bank of Wake, Wake Forest, N.C. and paid by the plaintiff. Immediately thereafter this suit was instituted, and the proceeds of said draft attached in the hands of the Bank of Wake. W. F. Augustine, witness for the intervener, testified: "We took these drafts as collateral to secure this debt, and sent them down to the Bank of Wake, Wake Forest, *Page 183 North Carolina, for collection, under our collection No. 8061." He further said: "We considered the item our property, and did not feel that we had a right to charge it back against the account of the Mutual Grain Company." On the face of the demand note above mentioned, in addition to the power to sell in case of default, appears the following stipulation in regard to the manner in which the Merchants National Bank of Richmond, Va., was to hold the said collateral drafts: "With authority to use, transfer, or hypothecate said collateral; it being required, on payment or tender at maturity of above amount, that the holder hereof shall return an equal quantity of said securities, and not the specific security deposited."
In the light of this evidence, his Honor charged the jury as follows: "Now, there is this rule of law, that where a bank takes a draft for value and without notice, it becomes, prima facie, the owner; but where there is an agreement between the bank and the person from whom the draft is acquired that the bank shall have the right to charge back the amount, if the draft is not paid, by express agreement, or one implied from the course of dealing, and not by reason of liability as drawer, the bank is an agent for collection and not a purchaser." This charge was correct and fully supported by the evidence. Brooks v. Mill Co.,182 N.C. 258, and Moon v. Milling Co., supra. The case seems to have been tried in substantial conformity to our decisions on the subject, and we must affirm the judgment.
No error.