Branch Banking & Trust Company v. Gill

211 S.E.2d 327 (1975) 286 N.C. 342

The BRANCH BANKING & TRUST COMPANY, Plaintiff,
v.
Edwin GILL, Treasurer of the State of North Carolina, et al., Defendants, and
Henry L. Stevens, III, et al., Third-Party-Defendants.

No. 123.

Supreme Court of North Carolina.

January 31, 1975. Order Allowing Petition to Rehear April 15, 1975.

Carr, Gibbons & Cozart by L. H. Gibbons, Wilson, Johnson & Johnson by Rivers D. Johnson, Jr., Warsaw, and Dees, Dees, Smith, Powell & Jarrett by William A. Dees, Jr., Goldsboro, for Branch Banking & Trust Company.

James H. Carson, Jr., Atty. Gen., by Millard R. Rich, Jr., Asst. Atty. Gen., Manning, Fulton & Skinner by Howard E. Manning and W. Gerald Thornton, Raleigh, for Edwin Gill and W. G. Parham, Jr.

Young, Moore & Henderson by J. C. Moore, Raleigh, for Insurance Company of North America.

Purrington, Hatch & Purrington by A. L. Purrington, Jr., Raleigh, for Hartford Accident and Indemnity Company.

Corbett & Fisler by Leon H. Corbett, Burgaw, for individual defendant Woodcock.

Henry L. Stevens, III, and Vance B. Gabin, Kenansville, Receivers of Southeastern Grain Association, Inc., third party defendants.

LAKE, Justice.

The Bank's Assignments of Error Numbers 9 to 14, inclusive, are directed to the judgment of the Superior Court dismissing the action against the defendant Parham, individually. These assignments are not brought forward in the Bank's brief, no argument is made and no authorities are cited therein with reference thereto. They are, therefore, deemed abandoned, and, no error appearing on the face of the record concerning it, that judgment is affirmed. Rule 28, Rules of Practice in the Supreme Court; Capune v. Robbins, 273 N.C. 581, 590, 160 S.E.2d 881; Mathis v. Siskin, 268 N.C. 119, 150 S.E.2d 24; Strong, N.C. Index 2d, Appeal and Error, § 45.

By that judgment it is determined that Parham was not negligent in any manner in connection with the operations of the Elevator and that he did not, individually, fail to perform any act, which he had an obligation to perform, which resulted in damages or injury to the plaintiff. The Bank's abandonment of all its assignments of error directed to that judgment makes it unnecessary for us to determine whether it was negligent, or otherwise a breach of Parham's duty, for him to sign warehouse receipts in blank and deliver them over to Woodcock, the Local Manager of the Elevator and also an officer of its principal customer, and thus put it in Woodcock's power to issue such receipts when no grain had been delivered to the Elevator in exchange therefor. We express no opinion upon that question herein.

Parham having been adjudged not negligent and free from any failure to perform his duties resulting in damage to the Bank, it necessarily follows that there was no error in the conclusion of the Superior Court in its other judgment that Hartford, the surety on the bond of Parham for the faithful performance of his duties, is not liable to the Bank or in so much of the second judgment of the Superior Court as adjudges that the Bank recover nothing from Hartford. (Bank's Assignments of Error Numbers 45, 65, 78 and 79.)

The Bank's Assignments of Error Number 1 through 8 relate to rulings of the Superior Court excluding or admitting evidence. We have carefully examined each of these and find no error therein which would justify a new trial of this action. No useful purpose would be served by discussing any of these assignments in detail.

The Bank's Assignments of Error Number 15, in part, and 47 to 72, inclusive, relate to the refusal of the Superior Court to adopt findings of fact tendered by the Bank. When, as in the present case, the parties to an action waive a trial by jury and agree that the judge may hear the evidence and find the facts, the findings of fact so made by the trial judge are comparable to the verdict of a jury. Such findings are conclusive upon review in an appellate court if there is competent evidence in the record to support them, even though the appellate court may deem the weight of the evidence to be to the contrary. Cogdill v. Highway Comm., 279 N.C. 313, 182 S.E.2d 373; Fast v. Gulley, 271 N.C. 208, 155 S.E.2d 507; Crews v. Crews, 210 N.C. 217, 186 S.E. 156; Strong, N.C. Index 2d, Appeal and Error, § 57. Conversely, the weight and credibility of the evidence being for the trial judge in such case, he is not bound to find facts as proposed by a party, even though there be competent evidence to support such a finding, and his rejection of the party's tendered finding of fact may not be reversed by the appellate court and is not ground for a new trial. Mitchell v. Barfield, 232 N.C. 325, 59 S.E.2d 810. Assignment of Error Number 15, insofar as it relates to the court's failure to make findings of fact as tendered by the Bank, and Assignments of Error Numbers 47 to 72, inclusive, are, therefore, overruled.

Assignments of Error Numbers 16 to 36, inclusive, relate to findings of fact made by the Superior Court, the Bank contending that the specified findings are not supported by competent evidence. We have reviewed each such finding and, except as noted below, conclude that there is in the record ample, competent evidence to support each finding made by the Superior Court in all material respects. Under the aforementioned rule, these findings of fact are binding upon us and these assignments of error are, therefore, overruled except as noted below. It would serve no useful purpose to discuss these overruled assignments of error individually.

The Superior Court's Finding of Fact Number 41, Assignment of Error Number 35, is a mixture of findings of facts and conclusions of law. The essence of it is in this sentence: "The plan to obtain possession of the sixteen old warehouse receipts from the Bank by issuing thirteen new fraudulent receipts was in no way intended nor did it in fact promote the interest of the Farmers Grain Elevator." This is not supported by any evidence and is clearly in conflict with other findings which are themselves supported by evidence.

At the time Woodcock's plan to obtain the 16 old receipts (the validity of which, in the hands of the Bank, is not questioned by the parties or by the finding of the trial court) was conceived and carried out, the Elevator, not Southeastern, was under official examination. Woodcock, its Local Manager, knew there were outstanding receipts issued by it calling for delivery of thousands of bushels of grain in excess of that in the Elevator. He knew that, if this shortage were discovered by the examiner, the Elevator would be compelled to cease operations. His plan was not designed to reduce and did not reduce the indebtedness of Southeastern or to enable Southeastern to obtain grain by surrendering the receipts obtained from the Bank, or to enable Southeastern to raise cash by further negotiation of the receipts. The purpose of the fraud upon the Bank was to surrender the old receipts of the Elevator for cancelation by it and thus conceal the shortage in the Elevator's accounts from the examiner, whose presence threatened the life of the Elevator. Clearly, the Elevator was the intended beneficiary of the fraud on the Bank and, clearly, it has, by retaining and canceling these receipts, benefitted through a substantial reduction of its own liabilities if, as the defendants contend, the new receipts be held invalid.

The net result of Woodcock's fraud, plus the judgment of the Superior Court, is this: The Bank has lost its old note, secured by warehouse receipts, the validity of which, in the hands of the Bank, is not denied, and, in lieu thereof, holds a new note of an insolvent association, secured by worthless paper. Southeastern is neither richer nor poorer than before. The Elevator's obligations to deliver grain have been substantially reduced at no cost to it. Finding of Fact Number 41 is not supported by evidence and must be stricken. The question for us is, Does the law of this State direct the reaching of the above result in the absence of Finding of Fact Number 41?

The Bank, by this action, does not seek the restitution to it of the old note and the old warehouse receipts. In its brief it states:

"The plaintiff does not seek to rescind the loan transaction with Southeastern. The plaintiff has elected to affirm that transaction and has brought suit to recover from the State Warehouse Superintendent the value of the grain represented by the 13 warehouse receipts which it holds. The burden is upon the State Warehouse Superintendent to make restitution to the appellant of the value of the 16 old receipts if he wishes to avail himself of the plea of fraud as a defense to the 13 new receipts. He cannot keep the benefits of his agent Woodcock's fraud without putting himself in the position of rectifying the validity of the 13 new receipts."

Clearly, the 13 new receipts were issued, in the name of the Elevator, by its agent Woodcock without actual authority in him to do so, no grain having been received by the Elevator in exchange for the receipts. G.S. § 106-441; G.S. § 106-443. Woodcock was also agent for Southeastern, the payee of the receipts. His knowledge of his own want of authority to issue these receipts is attributed to Southeastern. Norburn v. Mackie, 262 N.C. 16, 24, 136 S.E.2d 279; Williams v. Lumber Co., 176 N.C. 174, 180, 96 S.E. 950. Consequently, the doctrine of apparent authority would not be available to Southeastern and the 13 new receipts were a nullity in the hands of Southeastern. See: Barrow v. Barrow, 220 N.C. 70, 16 S.E.2d 460; 3 Am.Jur.2d, Agency, § 74. Obviously, had Southeastern retained the 13 new receipts, having received them with full knowledge that no grain had been delivered to the Elevator in exchange for them, Southeastern would have no claim thereon against the Elevator or any of the defendants.

Nothing else appearing, the Bank has no greater right by virtue of these receipts than did Southeastern, since the Bank is not a holder of them by "due negotiation," as that term is defined in the Uniform Commercial Code, G.S. Chapter 25, Part 5. The Code provides:

"Rights acquired in the absence of due negotiation; effect of diversion; seller's stoppage or delivery.—

(1) A transferee of a document, whether negotiable or nonnegotiable, to whom the document has been delivered but not duly negotiated, acquires the title and rights which his transferor had or had actual authority to convey." G.S. § 25-7-504(1).

A warehouse receipt is a "document of title." G.S. § 25-1-201(15). The receipts here in question were negotiable. G.S. § 25-7-104(1)(a). "A negotiable document of title is `duly negotiated' when it is negotiated in the manner stated in this section to a holder who purchases it in good faith without notice of any defense against or claim to it on the part of any person and for value, unless it is established that the negotiation is not in the regular course of business or financing or involves receiving the document in settlement or payment of a money obligation." G.S. § 25-7-501(4). (Emphasis added.) "A negotiable document of title running to the order of a named person is negotiated by his indorsement and delivery." G.S. § 25-7-501(1). (Emphasis added.)

The 13 new warehouse receipts in question were delivered by Southeastern, the payee, to the Bank without Southeastern's indorsement. To be sure, the affixing of the payee's (or subsequent holder's) name upon the reverse side of a negotiable document of title by rubber stamp is a valid indorsement, if done by a person authorized to indorse for the payee and with the intent thereby to indorse. Mayers v. McRimmon, 140 N.C. 640, 53 S.E. 447. However, the Superior Court found that Mrs. Carlton, who stamped the name of Southeastern upon the reverse side of these receipts, had neither the authority nor the intent thereby to indorse them in the name of Southeastern. The evidence supports these findings and would support no contrary finding. Therefore, the Bank is not a transferee by negotiation and, a fortiori, is not a transferee by due negotiation and, nothing else appearing, acquired the title and rights of Southeastern under the 13 receipts and no more.

It is quite true, as the Bank asserts, that the transferee of a negotiable document of title has a specifically enforceable right to have his transferor supply any necessary indorsement, but it is also true that "the transfer becomes a negotiation only as of the time the indorsement is supplied." G.S. § 25-7-506. Thus the Bank's proper demand, through its note teller, upon Southeastern's bookkeeper for indorsement of the receipts would not confer upon the Bank the status of a transferee by due negotiation, and a proper indorsement, after the Bank acquired knowledge of the defect in the instruments, would be equally unavailing.

Since the Bank is not a transferee by negotiation, it is unnecessary for us to determine the correctness of the Superior Court's conclusion that the Bank is not a transferee by due negotiation, for the further reasons that the receipts were irregular upon their face and that the Bank, by reason of its knowledge of Southeastern's poor financial condition and of the circumstances surrounding the transaction did not take the receipts in the regular course of business, or without notice of defenses.

Obviously, Southeastern, having, through its officer, Woodcock, full knowledge of the facts surrounding the issue of these receipts in the name of the Elevator, could not, if it had retained the receipts, recover anything upon or by reason thereof from any of these defendants. Nothing else appearing, the Bank has no greater rights as transferee of the documents. But, says the Bank, something else does appear, namely, the Elevator received and canceled the old receipts with full knowledge, via Woodcock, that they were benefits flowing from the unauthorized 13 new receipts, the fruits of the fraud perpetrated upon the Bank, and thereby the Elevator is estopped to challenge the validity of the 13 new receipts in the hands of the Bank.

Woodcock was the agent of both the Elevator and Southeastern. His knowledge of the plan and the purpose and circumstances of its execution is attributed to both his principals. The situation is, therefore, the same as if the two principals were natural persons dealing with each other with full knowledge of the plan and the circumstances of its execution. The present case is distinguishable from that supposed by the Superior Court in its Finding of Fact Number 41. Had Woodcock's plan to defraud the Bank not been for the purpose of benefitting the Elevator, as, for example, had his purpose been to obtain the old, valid receipts and surrender them for grain or further negotiate them for money for his own use, his knowledge would not be attributable to the Elevator.

When an agent, for the purpose of advancing the interests of his principal, makes, without authority, a contract in the name of the principal with another person, and the principal thereafter, with full knowledge of the facts, accepts and retains the benefits resulting from the contract, the principal ratifies the act of the agent and is bound upon the contract as fully as if the agent had originally acted in accordance with his authority. Lawson v. Bank, 203 N.C. 368, 166 S.E. 177; Sugg v. Credit Corp., 196 N.C. 97, 144 S.E. 554; Parks v. Trust Co., 195 N.C. 453, 142 S.E. 473; Waggoner v. Publishing Co., 190 N.C. 829, 130 S.E. 609; Bank v. Justice, 157 N.C. 373, 72 S.E. 1016.

The Elevator, with full knowledge of the issuance of the 13 new receipts though no grain had been delivered to it therefor, accepted the old receipts, upon which it was liable to the Bank, and canceled them. It still retains this benefit derived from the unauthorized contracts (receipts) made in its name by Woodcock. It thereby ratified those receipts and cannot now be heard to deny their validity in the hands of the Bank.

The 13 new receipts being the valid obligations of the Elevator and the Elevator having defaulted thereon, the liabilities of the defendants Gill (as Custodian of the State Indemnity and Guaranty Fund), Woodcock and his surety, Insurance Company of North America, are the same as they would have been had Woodcock been expressly authorized by the Elevator to issue these receipts. We turn to the North Carolina Agricultural Warehouse Act to determine what those liabilities are.

Woodcock was not the employee or agent of the State, or of the State Warehouse System, since no part of his compensation was paid by either. G.S. § 106-432.1 and G.S. § 106-433(b). The Bank's right to proceed against the State Indemnity and Guaranty Fund does not, therefore, rest upon the principle of respondeat superior.

The State Indemnity and Guaranty Fund was created by G.S. § 106-435 "in order to provide the financial backing which is essential to make the warehouse receipt universally acceptable as collateral." To that end G.S. § 106-441 provides: "[T]he receipts issued under this section for cotton and other agricultural commodities shall be supported and guaranteed by the indemnity fund provided in § 106-435." Each receipt here in question states upon its face, "The State of North Carolina guarantees the integrity of this receipt." The extent of that guaranty is the right of recourse to the said fund. G.S. § 106-446.

In Ellison v. Hunsinger, 237 N.C. 619, 75 S.E.2d 884, an action by the owner of the cotton wrongfully stored and delivered to another, upon the receipt issued therefor to the converter, this Court, speaking through Justice Parker, later Chief Justice, said:

"G.S. Ch. 106, Art. 38, makes * * * provision for the payment of full compensation to the plaintiff for his cotton by making (1) the bond of Noggle, local Manager of the Warehouse, Inc., and his employer, the Warehouse, Inc., primarily responsible for the plaintiff's loss, if there has been any default of Noggle and the Warehouse, Inc., in the faithful performance of their obligations in operating a warehouse under the terms of G.S. Ch. 106, Art. 38; and if they are not responsible by making (2) the bond of Fairley, State Warehouse Superintendent, liable for plaintiff's loss, if there has been any default by him in the faithful performance of his duties as State Warehouse Superintendent; and (3) if the plaintiff's loss, or any part of it, is not covered by such bonds, and by the liability of the Warehouse, Inc., then the indemnifying or guaranty fund created by G.S. § 106-435 and held in the State Treasury to the credit of the warehouse system is responsible to the plaintiff for his loss, or any part of his loss not covered by such bonds."

To the same effect, see: Lacy v. Indemnity Co., 193 N.C. 179, 136 S.E. 359; Lacy v. Indemnity Co., 189 N.C. 24, 126 S.E. 316.

In the present case, it has been judicially determined, as above noted, that Parham, the State Warehouse Superintendent, did not fail in the faithful performance of his duties and, consequently, neither he nor the surety on his bond is liable to the Bank.

Woodcock argues in his brief, that having "paid his debt to Society" on account of his failure to perform faithfully his duties as Local Manager of the Elevator, he cannot be held liable to the Bank. Not so! In the first place, the term "debt to Society" is a misnomer. One who serves a sentence imposed for a criminal offense pays no debt to Society. He suffers a punishment for his wrongdoing. In the second place, he is now sued upon an obligation to the Bank, not to Society. He defrauded the Bank and violated his duty under the Warehouse Act by issuing warehouse receipts for which no grain had been delivered to the Elevator. G.S. § 106-143. For the resulting loss, he and the surety on his bond are clearly liable to the Bank, theirs being the primary liability, that of the State Indemnity and Guaranty Fund secondary. Credit Association v. Whedbee, 251 N.C. 24, 110 S.E.2d 795. Woodcock's actions were, in part, for his own benefit since the shortage of grain at the Elevator was due to his own wrongful deliveries of stored grain, but even if he were acting solely for the benefit of his principal, the Elevator, this would not absolve him from personal liability for his fraud upon the Bank. Norburn v. Mackie, supra.

Thus the Superior Court was in error in concluding and adjudging that the Bank is entitled to recover nothing of the defendant Gill, as Custodian of the State Indemnity and Guaranty Fund, and nothing of the defendant Woodcock and his surety, Insurance Company of North America.

The remaining question relates to the amount the Bank is entitled to recover. Each of the 13 new receipts stated in words in its body that it was for "one hundred twelve thousand pounds of grain of the kind and grade described herein." In the margin, but as part of the printed, official form, were blanks for showing in figures both the number of pounds and the number of bushels. In each receipt these blanks were filled with figures showing the amount of grain as "112,000 pounds" and as "20,000 bushels." A bushel of corn weighs 56 pounds. Thus there is an ambiguity in each receipt. Is it for 112,000 pounds, which is 2,000 bushels, or is it for 20,000 bushels, which is 1,120,000 pounds?

Part 3 of the Uniform Commercial Code deals with commercial paper, not warehouse receipts. In G.S. § 25-3-118(c) it provides, "Words control figures except that if the words are ambiguous figures control." Assuming, without deciding, that the same rule applies to warehouse receipts, it has no application here for the statement of poundage is the same in both words and figures, the variance is between pounds and bushels.

In its complaint the Bank alleged it is the holder for value of 13 receipts for 20,000 bushels of No. 2 yellow corn, each. Its prayer was for recovery of the value of that quantity of such corn. The answers of all defendants denied this allegation and the answers of all, save Woodcock, alleged, affirmatively, that the receipts were issued without authority and the Bank was not a transferee by due negotiation for the reason (among others) that this ambiguity appeared on the face of the receipts, Hartford further alleging that this ambiguity rendered the receipts void for uncertainty. Thereupon, the Bank filed a reply, with leave of the Court, alleging that the old receipts which it surrendered in exchange for those now in question called for 270,000 bushels, that it was the intent of all parties to the transaction that the 13 new receipts be for 20,000 bushels each, a total of 260,000 bushels, and the statement of poundage thereon was a mistake of drafting not detected at the time of the transaction. The reply prayed reformation of the receipts to show each represented 1,120,000 pounds, the weight of 20,000 bushels.

It is true, as the defendants contend in their brief, that we have said that a reply is a defensive pleading and the plaintiff's cause of action cannot be alleged therein but must be stated in the complaint. Davis v. Highway Commission, 271 N.C. 405, 156 S.E.2d 685. The Bank, however, stated in its complaint the cause of action for recovery of the value of 260,000 bushels of corn alleged to be due it upon these receipts. Its prayer for reformation of the receipts for mistake in the drafting of them is a defensive measure raised in response to the defendants' several answers. The rule of pleading now cited by the defendants will not bar that relief if the Bank is otherwise entitled thereto.

The uncontradicted testimony of Mrs. Carlton, who prepared the receipts, is that Woodcock instructed her to make them out for 20,000 bushels each, that she undertook to do so and that, by her mistake, she stated the poundage therein incorrectly, stating the number of bushels correctly, took the receipts to the Bank and received in exchange receipts for a total of 270,000 bushels, which old receipts she canceled. Obviously, the Bank did not detect the mistake of the draftsman or it would not have released the old receipts calling for 270,000 bushels.

It is clear that, nothing else appearing, upon such showing of mutual mistake of fact resulting from an error of the draftsman, a court of equity will order the instruments reformed to express the true intent of the parties to the transaction. Crews v. Crews, supra. Crawford v. Willoughby, 192 N.C. 269, 134 S.E. 494; King v. Hobbs, 139 N.C. 170, 51 S.E. 911; Strong, N.C. Index 2d, Reformation of Instruments, § 1.

The Superior Court concluded:

"The plaintiff is not entitled to invoke the equity jurisdiction of this Court to reform warehouse receipts numbered 974 through 986 to change the pounds reflected thereon from 112,000 to 1,120,000, because the plaintiff does not have clean hands and, further, to grant such relief would be in direct conflict with the provisions of Chapter 25 of the General Statutes of North Carolina."

We find nothing in the Uniform Commercial Code, Chapter 25 of the General Statutes, which deprives a court of equity of its power to reform a warehouse receipt so as to correct a mistake of the draftsman. The maxim, "[H]e who comes into equity must [come] with clean hands," is well established as a foundation principle upon which the equity powers of the Superior Courts rest. However, in its application, it is limited to the conduct of the party seeking equitable relief in the specific matter before the court and does not extend to his general character. See: S. H. Kress & Co. v. Aghnides, 246 F.2d 718 (4th Cir.); Minnesota Muskies, Inc. v. Hudson, 294 F. Supp. 979 (D.C.N.C.); 27 Am.Jur.2d, Equity, § 142; 30 C.J.S. Equity § 98 c. Nothing in the findings of fact, or in the evidence, indicates any knowledge, or even suspicion, by the Bank, at the time it took these warehouse receipts in exchange for the old receipts, that these receipts were not valid or that each did not, in fact, represent 20,000 bushels of No. 2 yellow corn then in the Elevator. Obviously, the Bank had nothing whatever to gain by releasing receipts, valid in its hands, for 270,000 bushels of corn, held as security for the note of a maker in precarious financial condition, in return for spurious receipts purporting to represent a total of only 26,000 bushels.

The Superior Court's conclusion that the Bank does not have clean hands in this matter appears to rest upon its findings of fact to the effect that, for a substantial period prior to this transaction, the Bank knew of Southeastern's precarious financial condition; that over such period the Bank had been exceedingly generous in allowing overdrafts by Southeastern and making loans to it; and that, at the time of this transaction, the Bank knew an official examination of the Elevator was in progress and that the Bank was rather lax and slipshod in its inspection and handling of the documents in this particular exchange. The difficulty we have with the Superior Court's conclusion is not with these findings of fact but stems from their inadequacy to show bad faith on the part of the Bank in taking these receipts in lieu of the valid ones previously held by it. In no way could the Elevator's liability have been increased or the Bank's rights have been enlarged by the exchange.

Had the draftsman's error in stating the poundage on the receipts been detected by Mrs. Carlton, the draftsman, and Mrs. Walker, the Bank's note teller, at the time Mrs. Carlton tendered the new receipts as an exchange for the old, it is inconceivable that Mrs. Carlton would have failed to correct her error.

"Clean hands" connotes absence of sharp practice and bad faith on the part of the party seeking equity, not complete freedom from negligence and gullibility. As Justice Hoke, later Chief Justice, observed in Tobacco Association v. Bland, 187 N.C. 356, 360, 121 S.E. 636:

"Considering the record, then, in view of the general principles which should prevail in such cases, it is recognized that one who invokes in this way the equitable powers of the court for the protection of his rights must not by his own breach of duty have caused the injuries or threat of them, of which he complains, a position to some extent embodied in the more familiar maxim `that he who comes into equity must do so with clean hands.'" (Emphasis added.)

See also: Beam v. Wright, 224 N.C. 677, 684, 32 S.E.2d 213; Stelling v. Trust Co., 213 N.C. 324, 197 S.E. 754; 27 Am.Jur.2d, Equity, § 137; 30 C.J.S. Equity §§ 93, 95, 98.

We find nothing in the findings of fact by the Superior Court, or in the evidence set forth in the record, to support the conclusion that, in the transaction in which the Bank acquired the new warehouse receipts in exchange for the old, the Bank was acting in bad faith, or engaged in any sharp practice, so as to render its hands unclean and bar it from asking a court of equity to reform the new receipts to make them express the clear intent of the parties. The Bank, on this record, is entitled to have the 13 new receipts it now holds reformed so as to show they represent 1,120,000 pounds of corn each.

The judgment of the Superior Court that the Bank have and recover nothing of the defendant Gill, as Custodian of the State Indemnity and Guaranty Fund, or of the defendants Woodcock and Insurance Company of North America is reversed and this matter is remanded to the Superior Court of Duplin County for the entry of a judgment in conformity with this opinion.

As to defendants Parham and Hartford Accident and Indemnity Company affirmed.

As to defendants Gill, Woodcock and Insurance Company of North America reversed and remanded.

COPELAND and EXUM, JJ., took no part in the consideration or decision of this case.

ORDER ALLOWING PETITION TO REHEAR

The petition of defendants Edwin Gill, Treasurer of the State of North Carolina, and Insurance Company of North America to rehear the decision herein, reported in 286 N.C. 342, 211 S.E.2d 327 (1975), is allowed. While not strictly limited thereto, the reargument shall be addressed primarily to the questions of (1) estoppel, (2) ratification, (3) benefits, if any, flowing to Elevator when the thirteen new receipts were issued to Southeastern and the seventeen previous receipts later surrendered to Elevator for cancellation, (4) good faith or lack of it on part of the Bank, and how the claim of the Bank, not a holder of the thirteen new receipts by due negotiation, is affected by any or all of these things.