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SALES WHO MUST BEAR Loss WHERE PROPERTY SOLD IS NOT PAID FOR. -The rule seems to be well settled that where the terms of a simple sale of any specific piece of personal property are agreed upon, and the bargain is struck, while everything the seller has to do about it is completed, and he has authorized the buyer to take it, the contract of sale becomes absolute, without actual payment or delivery, and the property is in the vendee, who has the risk of loss by accident or otherwise without the fault of the seller: Leonard v. Davis, 1 Black, 476; Wing v. Clark, 24 Me. 366; Phillips v. Moor, 71 Me. 78; Barrow v. Window, 71 Ill. 214; Willis v. Willis, 6 Dana, 48; Sweeney v. Owsley, 14 B. Mon. 413. The rule is thus stated in Hayden v. Demets, 53 N. Y. 426–431: "Upon a valid sale of specific chattels, when nothing remains to be done by the vendor except delivery, whether conditioned upon payment or not, the right of property passes to the vendee, at whose risk it is retained by the vendor." And in Joyce v. Adams, 8 N. Y. 291-296, it was said: "It is a general rule of law that where a contract is made for the purchase of goods, and nothing is said about payment or delivery, the property passes immedi ately, so as to cast upon the purchaser all future risk, if nothing further remains to be done to the goods, although he cannot take them away without paying the price. But if anything remains to be done on the part of the seller, as between him and the buyer, such as weighing, measuring, or counting out of a common parcel, before the goods purchased are to be delivered, until that is done the right of property has not attached to the buyer, and the future risk, of course, remains with the seller." In Bissell v. Balcom, 39 N. Y. 275-279, it was said: "To the binding legal effect of such a sale, at the common law, delivery of the property is not necessary to vest the title in the purchaser, or to place the property at his risk, nor is it necessary that actual payment of any part of the price should be made. On the contrary, the sale may be perfect, the title pass, and the property be at the risk of the purchaser, and yet the vendor retain the possession, and have complete right to retain the possession until the price is paid, and to compel payment before delivery." Thus if part of the price be paid when the sale is made, and no express stipulation as to time of payment of the remainder is made, it is due upon delivery; and if the seller is prevented from making delivery by the act of God, he may, however, recover the remainder of the price from the buyer: Sweeney v. Owsley, 14 B. Mon. 413.

Or where goods are sold and delivered, to be paid for on the happening of some event, the vendor may recover, though the event on which payment is made to depend has been made impossible by the happening of an accident. Thus, where all the wood standing upon a certain lot was purchased at so much per cord, to be cut and hauled by the purchaser, measured in his yard, and paid for after measurement, and after a part of the wood had been cut and hauled, a large part remained on the land, and was there burned, the court decided that the sale was complete, and that the seller could recover the price of the wood burned, upon proof of its quantity: Upson v. Holmes, 51 Conn. 500. So where a specific lot of sheep are sold, to be delivered and paid for in the future, and before delivery, and while in the possession of the seller, they are injured without his fault, he may nevertheless recover the price of the sheep: Barrow v. Window, 71 Ill. 214. So where one buys goods to be delivered and paid for at a certain time, and before that time they are destroyed by flood, he must bear the loss: Black v. Webb, 20 Ohio, 304; 55 Am. Dec. 456. Where one buys a quantity of barley in the vendor's storehouse, at a certain price per bushel, the quantity to be afterwards ascer tained, and the vendor agreeing that it may remain until a future day named,

when the possession of the storehouse would pass to another party, with whom the vendee agreed that the grain might remain on storage after the day mentioned, and after such change of possession the storehouse and grain were burned, it was decided that there had been a sale and delivery, and that the loss occasioned by the fire must be borne by the vendee: Olyphant v. Baker, 5 Denio, 379. And where one contracts with another to buy all his spring lambs at a certain price to be paid, the seller to pasture them until called for, the title passes to the purchaser, without specifically setting the property apart, and if, without the seller's fault, it suffers injury, the loss falls on the purchaser: Bertelson v. Bower, 81 Ind. 512. So where, upon the sale of a colt, the parties agree that it shall run with its dam, which is in the possession and is the property of the seller, until it is weaned, and then be delivered to the purchaser upon payment of the price, the title to the colt passes at once to the purchaser, and its subsequent safe-keeping is at his risk, and he remains liable for the price: Henline v. Hall, 4 Ind. 189. So upon a sale of a certain quantity of wheat at ten cents per bushel less than the Milwaukee price should be on any day thereafter which the seller should name, and after the delivery of the wheat it was destroyed by fire before the day with reference to which the price should be determined had been named by the seller, it was decided that the title to the wheat was in the purchaser, and that the seller was entitled to the price upon naming the day with reference to which the price should be fixed: McConnell v. Hughes, 29 Wis. 537. And again, upon the sale of an entire quantity of butter at a certain price per pound, the purchaser to take and pay for part at once, and to take and pay for the remainder in thirty days, and after taking the first lot the remainder was destroyed by fire, without the fault of the seller, it was decided that the purchaser was liable for the lot burned: Seckel v. Scott, 66 Ill. 106. So where the seller raised tobacco on shares on the purchaser's farm, where it was stored, and sold his share of it to him at a certain price per pound, stipulating that when the purchaser sold the tobacco the seller was to receive all in excess for his share that the tobacco should bring above the price agreed upon, after deducting expenses, and before it was sold by the purchaser the whole crop was destroyed by flood, it was determined that the purchaser was liable to the seller for the first price agreed upon: Ruthrauff v. Hagenbuch, 58 Pa. St. 103. So where a buyer purchases or orders a specific quantity of goods to be shipped to him from a distant place, and the seller delivers them to a vessel designated by the buyer, or in the absence of such designation, to a common carrier, the mere fact that the goods are to be paid for by note or in cash, upon arrival, does not prevent the title from passing. The goods are the property of the buyer and at his risk from the time they are placed in the hands of the carrier: Farmers' Phosphate Co. v. Gill, 69 Md. 537; 9 Am. St. Rep. 443; and to the same effect, Mee v. McNider, 109 N. Y. 500.

Under conditional sales, where the title to the property is to remain in the seller until the purchase price is fully paid, while the possession passes to the purchaser at the time of sale, there seems to be an irreconcilable conflict in the authorities as to which party should bear the loss in case the property is lost or destroyed, without the fault of the seller, before the last payment of the purchase price is made. It seems to us that the better reasoning is in favor of the rule adopted in the case of simple sales, and that the loss should be borne by the purchaser.

This is the doctrine stated in Burnley v. Tufts, 66 Miss. 540, 14 Am. St. Rep. 540, from which the rule adopted in the principal case was drawn.

Where the purchaser unconditionally and absolutely promises to pay a cer

tain sum for personal property, the title to which is to remain in the seller until the full price is paid, the fact that the property is destroyed by fire before the time for the last payment to be made arrives, and while in the custody of the buyer, will not relieve him from the payment of the full price agreed upon. In Randle v. Stone, 77 Ga. 501, the facts of which are given in the note to Burnley v. Tufts, 14 Am. St. Rep. 541, the court was of an entirely different opinion, and there decided that in an exactly similar case the loss must be borne by the seller, because the title remained in him. So in Swallow v. Emery, 111 Mass. 355, the rule adopted in Randle v. Stone, 77 Ga. 501, prevailed. Chapman, C. J., in delivering the opinion, said: “It appears that the plaintiff delivered the horses, wagon, and harnesses to Waby to be used, and under a contract of sale when the stipulated price should be paid. The price was to be a gross sum for the whole property, and payable in labor. The articles were to remain the property of the plaintiff till the whole amount should be paid. After the payment, the plaintiff was to give Waby a bill of sale. The loss of one of the horses by its death, without any fault on the part of Waby, was the plaintiff's loss, and disabled him from performing the contract on his part; nor would he be entitled to receive the gross sum for the rest of the property. . . . . By retaining the property that remained, Waby would be liable to pay for that property, and not the gross sum agreed upon for the whole."

In Stone v. Waite, 88 Ala. 599, it was decided that under an executory sale of a stock of goods, at a price to be ascertained on taking an inventory, one half to be paid immediately, a note given for the remainder, and the title retained by the seller until such conditions were performed, the accidental loss of the goods by fire, after the completion of the inventory and the delivery of the key to the store to the purchaser, but before the first payment was made or the note for the balance given, falls on the seller, who cannot recover the price nor the money deposited by the buyer as a forfeit; the fire, however, excuses the seller from performing his contract, and the buyer cannot recover a forfeit deposited by the former.

NORFOLK NATIONAL BANk v. Griffin.

[107 NORTH CAROLINA, 173.J

NEGOTIABLE INSTRUMENTS ACCOMMODATION PAPER-LIABILITY OF MAKER AFTER INDORSEMENT. — A note made payable by the maker to himself, and signed by others as accommodation paper, to enable such maker to raise money thereon, and indorsed by him for that purpose, may be enforced, not only as against such maker and indorser, but also as against the other accommodation makers.

ACTION upon the following note:

"Sixty days after date, we jointly and severally promise to pay Griffin and Temple, negotiable and payable without offset, at the Norfolk National Bank, four hundred dollars, for value received. “J. W. GRIFFIN. "W. O. TEMPLE. "J. R. ETHERIDGE.

(Signed)

"W. S. TEMPLE."

The first two makers were partners, and Etheridge and W. S. Temple received no benefit from the note, they having signed as accommodation makers, to enable Griffin and Temple to raise money on the note. Griffin and Temple indorsed the note for value to plaintiff, and it remains unpaid. Judg. ment for plaintiff against all of the makers of the note, and Etheridge and W. S. Temple appeal.

E. F. Aydlett, for the appellants.

Pruden and Vann, for the respondent.

CLARK, J. A bond made payable to the obligor is void: Pear son v. Nesbit, 1 Dev. 315; 17 Am. Dec. 568; Justices v. Shannonhouse, 2 Dev. 6; Justices v. Armstrong, 3 Dev. 285. A bond is a deed, and no man can execute and deliver a deed to himself.

"According to common-law principles, a promissory note made payable by a person to himself creates, of itself, no liability upon him to pay it. This is so, not for the reason that it is contrary to public policy, immoral, or illegal, but because a person cannot contract with himself": Jenkins v. Bass, 88 Ky. 397; 21 Am. St. Rep. 344. Indeed, there is no contract till such paper has been indorsed over to another, when there springs up by the law merchant a valid contract between the maker and indorsee: 1 Daniel on Negotiable Instruments, sec. 130; Wood v. Maytton, 10 Ad. & E. 809 (59 Eng. Com. L.); Smith v. Lusher, 5 Cow. 688; Plets v. Johnson, 3 Hill, 112; Jenkins v. Bass, 88 Ky. 397; 21 Am. St. Rep. 344.

In this case, the note, upon its face, was executed for the purpose of being negotiated. It is found as a fact that the defendants signed it as accommodation paper, to enable those of the makers who are named as payees therein to raise money on the paper. Doubtless they were so named as payees because it was not yet known who would lend money on the note, and it was desired not to leave the names of payees in blank. Such practice is not unusual, and is well recognized by the law merchant.

The note was negotiated, as defendants intended should be done, and value received thereon. To protect them, upon the technical grounds set up, against the consequences of their own act would be against good morals, and would enable them to perpetrate a fraud on the plaintiff. By the indorsement to plaintiff, the contract, till then imperfect, became perfect and completed.

No error.

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PAPER-LIABILITY OF

NEGOTIABLE INSTRUMENTS - ACCOMMODATION MAKER AFTER INDORSEMENT. - Where a note is drawn and indorsed for the accommodation of the indorser, who gives a bond of indemnity to the maker, the latter will not be discharged: Bank of Montgomery v. Walker, 9 Serg. & R. 229; 11 Am. Dec. 709, and note. The accommodation maker of a note is liable to pay it according to its tenor, and cannot allege that he was a mere surety: Stephens v. Monongahela etc. Bank, 88 Pa. St. 157; 32 Am. Rep. 438.

HAWES V. BLACKWELL.

[107 NORTH CAROLINA, 196.]

BANKS AND Banking - Deposit. When a bank, in the course of business, receives deposits of money, in the absence of any agreement to the con. trary, it at once becomes the money of the bank as part of its general funds, and can be used by it for any purpose for which it may use money otherwise acquired.

BANKS AND BANKING - RELATION BETWEEN BANK AND DEPOSITOR. A

depositor, when he makes a deposit, becomes a creditor of the bank, and the latter becomes his debtor, for the amount of money deposited, agreeing to discharge the debt so created by honoring and paying the checks or orders drawn upon it by the depositor, when presented, not exceeding the amount deposited.

BANKS AND BANKING. RELATION BETWEEN BANK AND DEPOSITOR is that of debtor and creditor, and has none of the elements of a trust about it. The bank does not assume to become a fiduciary as to the money deposited, nor does it agree to hold it in trust for the depositor.

BANKS AND BANKING RIGHTS OF CHECK-HOLDER OR PAYEE. - The payee or holder of a check for part of a deposit cannot, in the absence of ground for equitable relief, maintain his separate action against the bank for non-payment on presentation, until the bank has accepted the check or agreed to pay it. He, however, has his remedy against the drawer, or they may jointly recover against the bank, subject to its rights of set-off against the depositor, and to pay all his outstanding checks of which it has notice before such check is presented. BANKS AND BANKING RIGHTS OF CHECK-HOLDER.

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- A check, as to the drawer thereof, is an assignment to the holder of the deposit to the amount specified in the check, but it does not create a lien as against the bank. The holder simply has an interest in the deposit, subject to the bank's right of set-off against the depositor, and to pay his outstanding checks received and paid before notice.

BANKS AND BANKING- RIGHTS OF CHECK-HOLDER. — A check for the whole of a deposit is an assignment of the depositor's whole debt against the bank, and entitles the holder to maintain his separate action therefor against the bank upon presentation of the check and refusal of payment, subject to the bank's right of set-off against the depositor, and to pay his outstanding checks received and paid before notice.

BANKS AND BANKING - REMEDY OF CHECK-HOLDER. -The drawer of a check

agrees that it will be paid by the bank when duly presented for pavment, and upon refusal by the bank to pay, the holder has his remedy against the drawer for his breach of contract.

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