#### HENRY EDMONDSON v. W. B. WOOTEN, ELBERT S. PEEL, Trustee, et al.

(Filed 24 February, 1932.)

Bills and Notes G c — Evidence of payment to collecting agent held sufficient to be submitted to jury.

Evidence that the maker of a note paid the amount thereof to the payee’s agent, that the agent had possession of the note and delivered it to the maker marked paid, that the agent deposited the amount in a bank to the payee’s credit and sent the payee a deposit slip in accordance with his instructions, and that thereafter the bank of deposit became insolvent and the payee filed a claim for the amount against the receiver thereof, is *’held,*sufficient to be submitted to the jury on the issue of payment to the duly authorized agent of the payee.

Appeal by defendant, W. B. Wooten, from *Devin, J.,*at December Term,- 1931, of MaetiN.

No error.

On 13 October, 1927, the plaintiff executed and delivered to the defendant, W. B. Wooten, four promissory notes, three for the sum of $1,000 each, due and payable on or before 1 January, 1929, 1930 and 1931, respectively, and one for the sum of $500, due and payable on or before 1 January, 1932. These notes were secured by a deed of trust executed by plaintiff and his wife, by which they conveyed to the defendant, Elbert S. Peel, trustee, the land described therein. It was admitted that the notes due and payable on or before 1 January, 1929 and 1931, have been paid and fully satisfied, and that the note for $500, was not due and payable at the commencement of this action.

This action is to enjoin the sale of the land described in the deed of trust, on the allegation in the complaint that the note due and payable on or before 1 January, 1930, was paid by the plaintiff on 21 December, 1929. This allegation is denied in the answer filed by the defendant, W. B. Wooten.

The issue submitted to the jury was answered as follows:

“Was the note due 1 January, 1930, paid to the duly authorized agent of the defendant, W. B. Wooten, as alleged in the complaint? Answer: Yes.”

From judgment enjoining the sale of the land described in the deed of trust, the defendant, W. B. Wooten, appealed to the Supreme Court.

*Hugh*(?. *Horton and J. O. Smith for plaintiff.*

*H. D. Hardison and J os. W. Bailey for defendant.*

Pee Cubiam.

There was evidence at the trial of this action tending to show that on 21 December, 1929, the plaintiff paid the amount of the *305note due and payable on or before 1 January, 1930, to tbe authorized agent of tbe defendant, W. B. Wooten, and that said agent deposited said amount witb tbe Bank of Oak City to tbe credit of tbe said defendant in accordance witb bis instructions. Tbe note was in tbe possession of tbe agent at tbe time payment was made to bim by tbe plaintiff,, and was delivered by bim to tbe plaintiff, marked “paid and satisfied.” Tbe agent sent to tbe defendant a deposit slip showing that tbe amount paid to him by tbe plaintiff bad been deposited witb tbe bank to tbe credit of defendant. Tbe defendant has filed witb tbe liquidating agent of tbe Bank of Oak City, which was closed because of its insolvency, on 23 December, 1929, bis claim for tbe amount of tbe deposit.

There was no error in tbe refusal of defendant’s motion for judgment as of nonsuit at tbe close of tbe evidence.

We find no error in tbe trial. Tbe evidence was submitted to tbe jury under instructions which are free from error. Tbe verdict is supported by tbe evidence. Tbe judgment is affirmed.

No error.