majority">Walker, J.,

after stating the facts: A judgment of non-suit requires us to assume that all the evidence which tends to establish the plaintiff’s case is true, and to view it in the aspect most favorable to the plaintiff, drawing every reason*235able and legitimate inference therefrom which the jury could have drawn had they passed upon the case. All the facts that make for the plaintiff must be taken as established and considered by us, and all those that make against them must be rejected. In a few words, they are entitled in this court to the most favorable interpretation of the evidence, after excluding all that is against them. Springs v. Schenck, 99 N. C., 551; Purnell v. Railroad, 122 N. C., 832; Printing Co. v. Raleigh, 126 N. C., 516. In Brittain v. Westhall, 135 N. C., 495, the principle was thus formulated: “It is well settled that on a motion to' nonsuit or to dismiss under the statute, which is like a demurrer to evidence, the court is not permitted to pass upon the weight of the evidence, but the evidence must be accepted as true and construed in the light most favorable to the plaintiff, and every fact which it tends to prove, must be taken as established, as the jury, if the case had been submitted to them, might have found those facts upon the testimony.” It was said in Avery v. Stewart, 136 N. C., 430: “The right of the plaintiff to have (the case) submitted to the jury cannot he denied or abridged, provided there is some evidence tending to establish the plaintiff’s contention.” The same principle applies with equal force when a plaintiff, in deference to an adverse intimation of the court, submits to a nonsuit. Gibbs v. Lyon, 95 N. C., 146; Springs v. Schenck, supra; Abernathy v. Stowe, 92 N. C., 213. The court declares in the case last cited that the plaintiff is entitled to go to the jury if in any view of the evidence he has made out a prima facie case. The question as to what is evidence fit to be considered by the jury was discussed by us in Byrd v. Express Co., and Campbell v. Everhart, at this term.

"We will now proceed to examine this case in the light of this well settled rule. If the first ruling made by the court was right, that is, the refusal to nonsuit the plaintiff at the close of his testimony, then the second ruling was wrong, as *236none of the evidence afterwards introduced could be considered against the plaintiff, but only sucb as was in bis favor. But we pass by the first ruling, as it was eliminated when the defendant introduced testimony, and we are now confined to the second ruling' dismissing the action at the dose of all the testimony. It appears that the plaintiffs sued Marr & Co. for the recovery of the debt .due to them and obtained judgment. Defendants appealed to this court and it was held here that the transaction between Marr & Co., the bank and Leatherwood, constituted a payment of the plaintiff’s claim and a new trial was awarded. Millhiser v. Marr, 128 N. C., 318. Tbe case was again tried below when the defendant got a judgment and the plaintiff appealed. Upon testimony substantially identical with that we have before us, this court held that there was evidence for the consideration of the jury upon the plea of payment, and that the only question involved was one of fact, whether the money bad been placed in the bank to Leatherwood’s credit, and, the jury having found with the defendant, the judgment was affirmed. Millhiser v. Marr, 130 N. C., 510. Leatherwood is certainly not bound by either of those decisions, under the doctrine of res judicata, for they cannot have that force and effect as to him, be not having been a party to the action. But if we are to follow those cases, as precedents, there is no way of avoiding the conclusion that His Honor erred in the trial of this cause, when be withdrew the case from the jury and decided as a matter of law that the plaintiff was not entitled to recover, in any view of the evidence. In the first of the decisions of this court to which we have referred, it is said: “In what way Ladd drew the money out of the bank does not appear, but it does not concern defendants. Under their agreement with Leatherwood, who bad it in bank to bis credit, it bad been appropriated for the payment of plaintiff’s debt, and if by negligence or otherwise upon the part of the attorney or the bank, Ladd got bold of the money, *237plaintiff must look to them and not to defendants. Plaintiffs were acting through their agent, having placed in him authority and trust, and are bound by his acts in dealing with defendants. In no sense was he the agent of the defendant, and they lost all control over, right to and responsibility for the money when he agreed to and did accept it in payment of his client’s debt.” 128 N. C., at p. 321. And in the second of the decisions the court says: “His Honor committed no error in holding, at the close of the evidence, that all there was in the-case was whether or not the $1,000 had been placed in the bank to the credit of Leatherwood to pay off the liens. There is no suggestion that Leatherwood misapplied the fund, but it is admitted that he did not do so. Hnder the decision of this court (Millhiser v. Marr, 128 N. C., 318), it is held that plaintiffs’ debt against defendants was settled when W. T. Conley released his lien and agreed that his money in Leatherwood’s hands should be applied to that purpose.” 130 N. C., at p. 512. Without discussing or deciding the question as to the liability of the defendant, we simply hold that there was evidence for the jury upon the issue raised by the pleadings. We prefer not to intimate any opinion at the present stage of the case as to the liability of the defendant, nor until we have a finding of the jury upon the facts. They may find against the plaintiff, and it may not therefore become necessary ever to decide that question, and if they find for the plaintiff, we do not now know exactly how the matter will be presented, if there is an appeal. We fully concur in what is said by the court in Millhiser v. Marr, 130 N. C., 512, namely, that there is no suggestion, and we add, no evidence that Leatherwood ever misapplied the fund or any part of it, nor indeed that he ever had it in his actual possession. His liability must depend upon facts, from which it will appear that he has derived no personal benefit from the transaction.

There are other exceptions in the case, but it is not neces*238sary to consider them, as the decision upon the matter discussed is sufficient to dispose of the appeal and the other questions may not again be presented. We will suggest, however, that if the plaintiffs expect to recover upon any other ground than that stated in the complaint, for example, upon the ground of negligence, they must amend their pleading. They can recover, if at all, only according to the allegations of their complaint. Faulk v. Thornton, 108 N. C., 314.

There was error in the ruling of the court. The nonsuit will be set aside and a new trial awarded.

Error.

Citation profile

How this case has been treated — in progress