The judgment was affirmed. Morris v. Cleve, 193 N.C. 389, 137 S.E. 162. It appeared upon the face of the complaint that plaintiff had discounted the note executed by said defendants and payable to his order, for value and before maturity, and that he was not the holder of said note at the date of the commencement of this action. It did not appear from the complaint that plaintiff was or had ever been the holder of the check drawn by the defendants on the Bank of Vanceboro, and payable to the order of the Bank of Washington. Nor did it appear that plaintiff had paid to the Bank of Washington the sum of $2,000, or any other sum, on account of his liability as an endorser on both the check and the note. It was, therefore, held that plaintiff had failed to state in his complaint facts sufficient to constitute a cause of action upon which he was entitled to recover of the defendants, D. W. and W. A. Cleve. Plaintiff was not the real party in interest with respect to the cause of action, if any, alleged in the complaint against the said defendants. He could n
In Bank v. Barrow it was held that plaintiff, the payee of the check, could not recover in the action to foreclose a mortgage because it had accepted defendant's check in payment of the note secured by the mortgage, and had failed to exercise due diligence in presenting the check to the drawee bank for payment. In Morris v. Cleve, 193 N.C. 389, it was held that plaintiff could not recover on the note which defendant had executed because upon the facts alleged in the complaint plaintiff was not the holder of the note. It is said in the opinion in that case: "It is immaterial whether said check has in fact been paid by the Bank of Vanceboro, on which it was drawn, or not; the Bank of Washington, as holder of said check, if it has not been paid, can alone recover of defendants as drawers of the check, the amount due thereon." The liability to its customer of a bank, which has accepted for collection and deposit to its customer's credit, a check drawn on another bank, from which it has accepted in payment of said check, a check or draft on still another bank, is discussed, with full citation of authorities in Barnes v. Trust Co., 194 N.C. 371.
STACY, C.J. This case was before us at the Spring Term, 1927, and is reported in 193 N.C. 389. Within ten days after the receipt of the certificate from this Court, sustaining the demurrer interposed by the present appealing defendants, the plaintiff, after due notice, moved for leave to amend the complaint under C. S., 515. (See, also, C. S., 546, and annotations thereunder.)
New trial. Cited: Darden v. Baker, 193 N.C. 389; Endicott-Johnson Corp. v. Schochet, 198 N.C. 770. (268)