#### S. O. PEEBLES and Wife, JEANETTE PEEBLES. v. W. C. IDOL, Trustee, and THE PIEDMONT BUILDING AND LOAN ASSOCIATION.

(Filed 4 December, 1929.)

1. Evidence D c; I b — Where bank ledger lias no probative value as evidence tending to establish fact in issue it is properly excluded.

In proceedings to enjoin a sale under foreclosure of a deed of trust where the plaintiff introduces evidence tending to show that he had not received the loan for which the deed of trust was given, the ledger of the *57bank, identified as a record of tbe lender, with tbe bank showing two items for tbe same amount of tbe loan charged against tbe lender on the day that tbe borrower deposited a like amount with tbe bank: *Held,*tbe ledger sheet was properly excluded in the absence of evidence from which the jury could find that one of the items charged to account of the lender was paid to the borrower, it having no probative force upon the fact of payment in issue, and being irrelevant and immaterial.

2. Trial E g — In the charge to the jury the use of the word “testimony” instead of “evidence” held not prejudicial error in this case.

*Held,*in this case that the use by the judge in his charge to the jury of the word “testimony,” instead of the word “evidence,” upon the quantity of proof required of the plaintiff, was not prejudicial to the defendant.

Appeal by defendants from *Glament, J.,*at June Term, 1929, of Guilford. No error.

Action to enjoin tbe sale of land under tbe power of sale contained in a mortgage from plaintiffs to tbe defendant, W. 0. Idol, trustee, and for tbe cancellation of said mortgage, and of tbe note secured thereby, payable to tbe defendant, tbe Piedmont Building and Loan Association.

Tbe allegation in tbe complaint tbat plaintiffs bave received no consideration for said note was denied in tbe answer. Tbe issue thereby raised was submitted to tbe jury and answered as follows:

“Was tbe note secured by a mortgage, which mortgage is recorded in Book 444, page 300, in tbe office of tbe register of deeds of Guilford County, executed without consideration, as alleged in tbe complaint? Answer: Yes.”

From judgment on tbe verdict, defendants appealed to tbe Supreme Court.

*King, Sapp & King for plaintiffs.*

*Roberson, Haworth & Reese for defendants.*

CoNNOR, J.

Some time prior to 13 October, 1924, tbe plaintiff, S. O. Peebles, tbe owner of a certificate for ten shares of its stock, issued to him on 15 January, 1924, applied to tbe defendant, tbe Piedmont Building and Loan Association of High Point, N. C., for a loan of $1,000, to be secured by said certificate, and by a mortgage on certain land described in said application. Tbe application for tbe loan was approved by tbe directors of said association. Thereupon, on 13 October, 1924, plaintiffs executed a mortgage by which they conveyed to tbe defendant, W. C. Idol, trustee, tbe land described in tbe application. A note for $1,000, executed by tbe plaintiff, S. O. Peebles, and payable to tbe defendant association, tbe mortgage securing said note, executed and acknowledged by tbe plaintiffs, and tbe certificate for ten shares of its stock, owned by tbe plaintiff, S. O. Peebles, were delivered to tbe de-*58fondant association and are now in its possession. Default has been made in the payment of said note, according to its tenor, and at the request of the defendant association, the defendant, W. C. Idol, trustee, has advertised the land conveyed to him by the mortgage for sale.

Plaintiffs. allege in the complaint in this action that they have received no consideration for the note secured by the mortgage; they pray judgment that the defendants be enjoined from selling the land described in the mortgage, under the power of sale contained therein, and that the note and mortgage be canceled and delivered to them.

Defendants deny the allegation in the complaint that plaintiffs have •received no consideration for said note; they allege that a check for $1,000, payable to S. 0. Peebles, and drawn by W. C. Idol, secretary of the Piedmont Building and Loan Association, on the Wachovia Bank and Trust Company, was delivered to the plaintiff, S. 0. Peebles, on or about 17 November, 1924, for said note, and that said check was deposited by the said S. 0. Peebles with the Wachovia Bank and Trust Company of High Point, N. C., to his credit, on 19 November, 1924, and that on said day the said cheek was charged to the account of the Piedmont Building and Loan Association with said Bank and Trust Company.

Evidence for the plaintiffs tended to show that within a few days after the note, mortgage and certificate were delivered by him to the defendant association, and before its attorneys had reported to it the result of their investigation as to plaintiffs’ title to the land described in the mortgage, the plaintiff, S. 0. Peebles, notified W. C. Idol, secretary of the defendant association, that he would not need the loan for which he had applied, and that he had requested the said W. 0. Idol to return his papers to him, and that the said W. 0. Idol advised the said plaintiff that the said papers would be returned to him by mail, as soon as they were received from the attorneys of the association. The report of the attorneys was received by the association on 28 October, 1924. Neither the note, the mortgage nor the certificate was returned to plaintiffs. S. O. Peebles testified that when he subsequently called on W. C. Idol, secretary of defendant association, and again requested him to return his papers to him, the said W. 0. Idol, after failing to find the papers in his office, insisted that they had been returned to plaintiff by mail. Under the rules governing the defendant association, interest on loans to its stockholders was payable monthly, with the monthly payments on the shares of stock owned by them. No demand was made on plaintiff, S. O. Peebles, for interest on his note until some time in October, 1927, when defendant association demanded of the said S. 0. Peebles payment of interest for thirty-four months, contending that he was in arrears on *59these payments. Plaintiff denied that be owed tbe defendant association any sum on account of said note, and demanded tbe return of tbe note and mortgage to bim.

Evidence for tbe defendants tended to show that on 17 November, 1924, tbe defendant, W. C. Idol, as secretary of tbe defendant association, drew a ebeeb for $1,000, payable to S. O. Peebles, on tbe Wachovia Bank and Trust Company, for tbe loan which said association bad agreed to make to tbe plaintiff. Tbe note, mortgage and stock certificate were then in tbe possession of tbe defendant association, having' been received from its attorneys, with their approval of plaintiffs’ title to tbe land described in tbe mortgage, on 28 October, 1924. Tbe mortgage which bad been duly acknowledged by plaintiffs on 13 October, 1924, was recorded in tbe office of tbe register of deeds of Guilford County,' on 29 October, 1924. W. 0. Idol testified that be bad no recollection that plaintiff bad notified bim that be did not want tbe loan, and bad requested bim to return tbe papers to bim, as soon as they were received from tbe attorneys of tbe association. He testified that as secretary of tbe defendant association, on 17 November, 1924, be drew a check for $1,000, payable to S. O. Peebles, and that be filled in tbe blanks on tbe stub of bis check book, showing date, tbe amount and the payee of tbe check. He did not testify that be delivered tbe check to S. 0. Peebles, in person or otherwise. Neither tbe check nor tbe stub was offered in evidence. Witnesses for defendants testified that tbe checks of tbe defendant association and tbe stubs for tbe month of November, 1924, bad been destroyed. Defendants accounted for tbe failure to demand of tbe plaintiff tbe monthly payments of tbe interest on tbe note, in accordance with its terms, by evidence tending to show that tbe bookkeeper in tbe employment of tbe defendant association failed to make tbe proper entries on tbe records of tbe association, and did not discover bis error until after tbe lapse of thirty-four months.

In order to show that plaintiff, S. O. Peebles, received and collected tbe check for $1,000, which defendants’ evidence tended to show was drawn by W. C. Idol, as secretary of defendant association, payable to bim, defendants offered in evidence, without objection from plaintiffs, the account of S. 0. Peebles with tbe Wachovia Bank and Trust Company. This account showed that on 19 November, 1924, S. O. Peebles deposited to bis credit with said Bank and Trust Company tbe sum of $1,000. There was no evidence tending to identify this deposit with tbe cheek for $1,000, drawn by W. C. Idol, secretary of tbe Piedmont Building .and Loan Association, bearing date 17 November, 1924. There was evidence tending to show that from November, 1924, to September, 1925, S. 0. Peebles, who was actively engaged in business during said period made 340 deposits with tbe Wachovia Bank and Trust Company *60at High Point, N. C., aggregating tbe sum of $142,951.50. Three of these deposits were for $1,000 each, to wit, on 19 November, 1924, 14 April, 1925, and 24 September, 1925. Plaintiff testified that he was unable, at the date of the trial in June, 1929, to identify the source of any of these deposits. W. C. Idol, who is the cashier of the Wachovia Bank and Trust Company at High Point, and also secretary of the Piedmont Building and Loan Association, testified that he had, upon investigation, ascertained that one of the deposits for $1,000, shown on the account of S. O. Peebles, was a loan made to him by the said Bank and Trust Company, and that the other deposit was a loan made to him by the defendant association, subsequent to the date of the note in controversy. The witness was unable to identify the deposij; of 19 November, 1924, with the check which he had testified that he drew as secretary of the defendant association, payable to S. O. Peebles on II November, 1924.

Defendants further offered in evidence the account of the Piedmont Building and Loan Association with the Wachovia Bank and Trust Company, for the month of November, 1924, as shown on a ledger sheet identified as a record of said Bank and Trust Company made in the due course of its business. Plaintiffs objected to the introduction of this ledger sheet which showed that on 19 November, 1924, the Piedmont Building and Loan Association was charged with three items, two of $1,000 each, and one of $700. There was no evidence tending to show to whom these sums were paid, or tending to show that either of the items for $1,000 had any relation to the deposit of $1,000 on the same day to the credit of S. O. Peebles. Plaintiffs’ objection to the introduction of the ledger sheet showing the account of the Piedmont Building and Loan Association with the Wachovia Bank and Trust Company was sustained. On their appeal to this Court, defendants rely chiefly upon their assignment of error based upon this exception.

In the absence of evidence from which the jury could find that one of the items of $1,000, shown on the ledger sheet, as charged to the account of the defendant association, on 19 November, 1924, was paid to the plaintiff, S. O. Peebles, on the check drawn by W. C. Idol, secretary of said association, on 17 November, 1924, payable to him, the said ledger sheet was properly excluded as evidence upon the issue submitted to the jury in this case. It has been held that the books of a bank when they are proved to have come from the proper depository, are admissible in evidence. 10 R. C. L., p. 1175, sec. 373. However, they are not admissible, when they are not competent, for the reason that they have no probative value as evidence tending to establish a fact involved in the issue to be determined by the jury. In the instant ease, the fact that the account of the defendant association with the Wachovia Bank and *61Trust Company was charged on 19 November, 1924, with two items of $1,000 each, does not tend to show that the deposit on the same day with said Bank and Trust Company of $1,000, to the credit of S. O. Peebles, was made from the proceeds of either of said items. The fact which the excluded evidence tends to show is not relevant to the facts sought to be proved, to wit: that S. O. Peebles deposited the check of the defendant association with the said Bank and Trust Company, on 19 November, 1924, and that said cheek was paid by the said Bank and Trust Company to him on said day. Evidence, although admissible, should be excluded when it is irrelevant, and therefore incompetent. In *Martin v. Knight,*147 N. C., 564, 61 S. E., 447, it is said, on page 582: “It is clear that a paper-writing or record containing no information upon which an inference could he drawn in regard to the matter in controversy, is irrelevant and .inadmissible for any purpose.” The entry on the ledger sheet which was excluded by the court showed only that two items, each for $1,000, were charged to the defendant association by the Wachovia Bank and Trust Company, on 19 November, 1924; there was no evidence from which the jury could find that there was any relation between either of the items charged on the account of defendant association and the deposit credited on the account of S. 0. Peebles; or that there was any relation between either the charge or the credit, and the check, which was drawn by W. 0. Idol, as secretary of the defendant association, on 17 November, 1924, payable to S. 0. Peebles. There was no error in the exclusion of the ledger sheet as evidence in this case.

Other assignments of error on this appeal based upon exceptions to the rulings of the court upon matters, of evidence cannot be sustained. The use of the word “testimony,” by the judge in his charge to the jury, instead of the word “evidence” in the instruction as the quantity of proof required of plaintiffs, was manifestly not prejudicial to the defendants. The judgment is affirmed. We find

No error.