#### STERLING MILLS, Inc., v. SAGINAW MILLING COMPANY.

(Filed 6 December, 1922.)

1. Attachment — Interpleader—Banks and Banking — Bills and Notes— Negotiable Instruments — Burden of Proof.

Where the forwarding bank intervenes and claims title to a draft of a nonresident debtor attached in the hands of a local bank, the burden is on the intervener to show its title to the property attached, and upon its evidence tending to show prima facie that it was the purchaser of the draft for value, and is a holder thereof in due course, without notice of any defenses or equities, an issue of fact is raised for the determination of the jury. C. S., 3040.

2. Same — Evidence—Questions for Jury — Trials—Instructions—Verdict Directing.

Where the forwarding bank of a nonresident debtor intervenes in the creditor’s action, and claims the proceeds of a draft in the hands of a local bank, in attachment proceedings, and the intervener’s officer testifies positively that the intervener was a purchaser for value, in due course, without notice of any infirmity, etc., in the paper, his further testimony, on cross-examination, as to general dealings with the attachment debtor, crediting it with drafts, and charging them back if not paid on presentation, raise the question of the intent between the forwarding bank and its depositor, as to whether the paid draft in question was acquired by the intervener in due course, O. S., 3040, or whether it had accepted the draft as a mere agency for collection, in which latter event the proceeds of the draft would be subject to attachment in the hands of the local bank; and on this conflicting evidence a direction of the verdict against the intervener is reversible error.

Appeal by intervener from Bay, J., at March Term, 1922, of Ieedell.

Plaintiff, a North Carolina corporation, with its principal place of business at Statesville, N. 0., having a cause of action against the Saginaw Milling Company, a foreign corporation, instituted this suit in the Superior Court of Iredell County, and sought to obtain service upon the defendant by attaching the proceeds of a draft in the hands of the Peoples Loan and Savings Bank, Statesville, N. O., alleging that said funds belonged to the defendant.

Thereafter, on 19 August, 1921, the Second National Bank of Saginaw, Michigan, was allowed to intervene and to set up its claim of title to the proceeds of said draft.

TJpon the issue thus raised there was a verdict and judgment in favor of the plaintiff. The defendant made no appearance and filed no answer. Intervener appealed.

Dorman Thompson for plaintiff.

John A. Scott, Jr., for intervener.

*462Stacy, J".

Tbe burden was on tbe intervener to make good its claim and to sbow title to tbe property attached. Moon v. Milling Co., 176 N. C., 410. In order to meet tbis requirement, tbe intervening bank offered evidence tending to sbow, prima facie at least, tbat it was a purchaser of tbe draft in question for value, and a bolder of tbe same in due course, without notice of any defenses or equities. C. S., 3040; 1 Dan. on Neg. Inst., secs. 812 and 814 a; Jackson v. Love, 82 N. C., 405; Hodge v. Smith, 130 Wis., 326; Scoville v. Landon, 50 N. Y., 686.

After offering tbe draft in evidence, due execution of which was admitted by tbe plaintiff, E. W. Glynn, cashier of tbe intervening bank, testified as follows: “Tbe draft was in possession of tbe Second National Bank with bill of lading attached; it belonged to tbe Second National Bank of Saginaw; the proceeds of payment of said draft belonged to tbe Second National Bank of Saginaw, Michigan. Tbe Saginaw Milling Company did not own any interest in tbe draft when forwarded by tbe Second National Bank of Saginaw, and does not own any interest in tbe money paid for said draft by tbe Statesville Flour Mills, and later attached by tbe Sterling Mills. Tbe Second National Bank of Saginaw does not owe tbe Sterling Mills anything. Tbe draft was in tbe possession of tbe Second National Bank of Saginaw as owner and not as agent of tbe Saginaw Milling Company- It was forwarded by tbe Second National Bank of Saginaw to tbe Peoples Loan and Savings Bank of Statesville for presentment and payment as our property, owned by our bank, and not as agent of tbe Saginaw Milling Company.”

On cross-examination, in reply to tbe question, “Does not .your bank habitually credit tbe account of tbe Saginaw Milling Company with tbe amount of drafts on customers of said Saginaw Milling Company, giving permission to tbe Saginaw Milling Company to draw against such credits, and then charge up tbe Saginaw Milling Company with such papers as are not paid on presentation?” tbe witness answered, “Yes, tbat is, we collect back from Saginaw Milling Company such drafts as are returned to us refused. In tbis case, however, tbe draft was paid.”

At tbe close of tbe evidence tbe court charged tbe jury: “If you believe tbe testimony in tbis case, you will answer tbe first issue No.’ ” Exception by intervener.

We think tbe evidence upon tbe issue as to whether tbe intervening bank was an agent for collecting tbe draft in question or a purchaser thereof for value, was sufficiently equivocal, if not contradictory, to require a finding by tbe jury, and tbat bis Honor’s charge, which virtually amounted to a direction of the verdict, was erroneous.

*463If tbe intervener held the draft as a purchaser for value, the proceeds derived therefrom could not be attached in the hands of the Peoples Loan and Savings Bank as the property of the Saginaw Milling Company; but, on the other hand, if the intervening bank acted merely as a collecting agent, the proceeds would belong to the defendant, and consequently they would be subject to attachment in the hands of the garnishee bank. Worth Co. v. Feed Co., 172 N. C., 335; Markham-Stephens Co. v. Richmond Co., 177 N. C., 364. Upon this point, the real determinative question is as to the intention of the parties; and this is a question of fact to be ascertained by the jury, where the evidence is conflicting. Worth Co. v. Feed Co., supra.

The ease at bar is distinguished from Temple v. LaBerge, ante, 252, for there the testimony was susceptible of only one interpretation or of but a single conclusion. Here the evidence is conflicting. It may be sufficient to rebut the prima facie case, but this is a matter to be submitted to the jury under proper instructions from the court. Currie v. R. R., 156 N. C., 426.

For the error, as indicated, in directing a verdict on evidence from which different inferences may be drawn, we are of opinion that the cause must be submitted to another jury, and it is so ordered.

New trial.