Each of the cases cited by plaintiff is factually distinguishable. It is deemed sufficient to consider in detail only Trust Co. v. Bank, 166 N.C. 112, 81 S.E. 1074, and on subsequent appeal, Trust Co. v. Bank, 167 N.C. 260, 83 S.E. 474, referred to in plaintiff's brief as the leading case and as setting forth the grounds on which "plaintiff framed its complaint." In Trust Co. v. Bank, supra ( 166 N.C. 112), the plaintiff appealed from a judgment of nonsuit entered at the close of plaintiff's evidence.
1. Where in the trial of this action plaintiff produces paper writings, in the form of negotiable notes purporting to be payable to him and to be signed by intestate of defendants, administrator and administratrix, upon which the action is based, and testifies to his possession of them since certain dates, even though such dates correspond with the purported dates of such paper writings, and identifies the purported signatures thereto to be in the handwriting of said intestate, are such paper writings admissible in evidence? Yes. See Pate v. Brown, 85 N.C. 166; Pugh v. Grant, 86 N.C. 40; Kiff v. Weaver, 94 N.C. 274; Johnson v. Gooch, 116 N.C. 64, 21 S.E. 39; Trust Co. v. Bank, 167 N.C. 260, 83 S.E. 474. However, defendants contend that such paper writings are inadmissible in that the admission of them in evidence contravenes the provisions of C. S., 1795, which, briefly stated, provides that upon the trial of an action a party or a person interested in the event shall not be examined as a witness in his own behalf against the administrator of a deceased person, concerning a personal transaction or communication between the witness and the deceased person.
C. S., 2976; C. S., 3040; 3 R. S. L., sec. 190. By presenting the paper he made out a prima facie case. As was held in Trust Co. v. Bank, 167 N.C. 260, "the production of the notes by the plaintiff was prima facie evidence of ownership." Here there was nothing to rebut the prima facie case.
" The entire text is supported by numerous authorities there cited. See also Vaughn v. Johnson, 20 Idaho 669; 39 L.R.A. (N.S.) 816; Standard Trust Co. v. Commercial Natl. Bank, 167 N.C. 260; Fidelity Trust Co. v. Ellen, 163 N.C. 45; Myers v. Petty, 153 N.C. 462; Amer. Natl. Bank v. Fountain, 148 N.C. 590; Hahn v. Bradley, 92 Mo. App. 399. In Canajoharie Natl. Bank v. Diefendorf, 123 N.Y. at 205, the court said: "It makes no difference in the question presented, whether the plaintiff pursues the orderly course of first presenting and proving his note, relying upon the presumptions of bona fides, which accompany possession of the paper, and delays making proof of the circumstances of his his purchase until after the defendant gives evidence of his defense, or as in this case, he makes the proof of such circumstances as a part of his affirmative case. . . . Such a party makes out his title by presumptions, until it is impeached by evidence showing that the paper had a fraudulent inception, and when this is done the plaintiff can no longer rest upon the presumptions, but must show affirmatively his good faith."
These are controversial matters which relate themselves directly to the underlying question in the case whether the defendant discharged the statutory duty imposed upon it by sections 350-a and 350-d of the Negotiable Instruments Law. The controversy is factual and accordingly is within the province of the jury. ( Standard Trust Co. v. Commercial National Bank, 240 Fed. 303, 308, 309.) We conclude the trial court was in error in granting defendant's motion for a nonsuit and dismissal of the complaint at the close of plaintiff's evidence.