Opinion
12692
July 1, 1929.
Before DeVORE, J., Beaufort, December, 1927. Affirmed.
Action by Hanover National Bank against Lewellyn Norris. Judgment for plaintiff and defendant appeals.
Mr. George W. Beckett, for appellant, cites: As to tender: Sec. 3721, Code; 3 R.C.L., 911; 76 Am. Dec., 742; 14 Am. Dec., 225; 47 N.Y., 270; 13 Pick., 464; 109 S.C. 70; Id., 294; 113 S.C. 140; 117 S.C. 140; Sec. 3738, Code; 21 R. C.L., 821; 50 Am. Dec., 181; 28 L.R.A. (N.S.), 230. As to payment: 14 S.C. 444; Sec. 3732, Code; 7 Cal., 166; 11 Cal., 166; 4 Conn., 465; 28 L.R.A., 286; 48 A.S.R., 258; 6 Mich., 240; 8 Am. Dec., 396; 13 Ga. 287; 12 La. Am., 551.
Mr. Randolph Murdaugh, for respondent, cites: Payment is an affirmative defense: 132 S.C. 344; 128 S.C. 420; 133 S.E., 129; 3 R.C.L., 1288. Possession of note payable to bearer is prima facie evidence of legal title in holder: 3 R.C.L., 980; 8 C.J., 598; 84 S.E., 885. As to payment: 110 S.C. 99; 135 S.C. 365; 126 S.C. 283.
July 1, 1929. The opinion of the Court was delivered by
The facts of this case may be briefly stated as follows: On February 2, 1926, the defendant gave to the Beaufort Bank her promissory note for $250, payable at that bank on July 1, 1926. For value and before maturity, the note was delivered to the plaintiff, Hanover National Bank, which became a holder in due course. On its due date the defendant had on deposit in the Beaufort Bank sufficient funds to pay the note, but presentment for payment was not made. On July 2, the maker gave the cashier of the Beaufort Bank a check on her deposit for the amount due and asked for the note. The cashier then told her that the note was in New York and promised to secure it for her, but this he never did, nor was any remittance of her payment ever made to the plaintiff. On July 12, the Beaufort Bank closed its doors and did not thereafter reopen for business. Later the holder of the note brought this action for its collection. The case was submitted to the Circuit Judge on an agreed statement of fact, and judgment was given for the plaintiff for the principal sum of $250.
A discussion of the questions presented by the appeal is unnecessary. The case is controlled by the decision in Federal Intermediate Credit Bank v. Epstin et al., 151 S.C. — , 148 S.E., 713, opinion filed June 12, 1929, and for the reasons stated by the Court in that case the order herein appealed from is affirmed.
MR. CHIEF JUSTICE WATTS, and MESSRS. JUSTICES COTHRAN, BLEASE, and CARTER concur.