
79 S.E.2d 243 (1953)
239 N.C. 18
BRYANT
v.
MURRAY.
No. 526.
Supreme Court of North Carolina.
December 16, 1953.
*245 Robinson & Jones, Charlotte, for appellant.
Thomas G. Lane, Jr., Charlotte, for appellee.
DENNY, Justice.
The first assignment of error is based upon the defendant's exceptions to the refusal of the court below to sustain his motion for judgment as of nonsuit.
The appellant takes the position that the court should have sustained his motion on the ground that plaintiff's evidence was insufficient to show lack of probable cause. He bases his position on four propositions, *246 which he insists should be considered in combination, as well as singly, as follows:
"(a) Upon the uncontradicted evidence plaintiff participated in the surreptitious taking of property of the defendant in such a manner as to create a reasonable inference that the taking was with a felonious intent.
"(b) The advice of a member of the North Carolina Bar, which is now a State agency, that on a given state of facts he was of the opinion that the person charged is guilty of a particular crime, as distinguished from mere advice to swear out a warrant, should be held to be conclusive on the question of law involved in the opinion as it relates to probable cause.
"(c) The plaintiff gave an appearance bond and waived preliminary hearing and later the grand jury returned a true bill. The prima facie case of probable cause thus made was not rebutted.
"(d) A Superior Court Judge presiding over a trial of the criminal charge held that the evidence was sufficient to sustain a conviction."
These propositions will be considered in the order in which they are presented.
The defendant contends that the controversy between the plaintiff and the defendant as to whether a part of the price of the cut stone was for labor and a part for the unfinished stone, has no material bearing on this case. In this conclusion we concur. He does contend, however, that he had the right to direct the application of the $145 represented by his check and that he did so by marking thereon: "For bal. 31/4 tons cut stone," citing Thomas v. Bank of Beaufort, 183 N.C. 508, 112 S.E. 27. It is true that where a debtor owes two or more debts and makes a payment, it must be applied according to his direction made at or before the time the payment was made. French v. Richardson, 167 N.C. 41, 83 S.E. 31; Stone Co. v. Rich, 160 N.C. 161, 75 S.E. 1077; Young v. Alford, 118 N.C. 215, 23 S.E. 973; Moose v. Marks, 116 N.C. 785, 21 S.E. 561. Even so, the notation on the defendant's check, in light of the facts and circumstances disclosed by the record, is of no particular significance. For, as we interpret the evidence, the plaintiff informed the defendant at the time the stone was purchased that it was held by him on consignment and could not be delivered except for cash.
Immediately after the stone was delivered in Mocksville the defendant weighed it and concluded there was a shortage, and stopped payment on his check before communicating with the plaintiff. After getting in touch with the plaintiff and having a discussion with him about the loss of weight in cutting the stone, the defendant agreed to keep it and to instruct the bank to pay the check. However, the check was dishonored when presented and the plaintiff thereupon, being unable to contact the defendant, sent to Mocksville for the stone. All of the stone, including the pieces for the window sill, was carried back to plaintiff's place of business. Thereafter, on Monday, 28 May, 1951, the defendant called the plaintiff and said to him: "Someone stole my stone up here. I went out there this morning and it was gone." The plaintiff replied: "Yes, sir, it's here on the yard. * * * You stopped payment on the check and we couldn't find you anywhere, so we picked it up and brought it back until we can get this thing settled here one way or the other."
The defendant contends that when he agreed to keep the stone and to remove the stop-payment on his check, then the title thereto passed to him. Moreover, he submits that if the title to none of the stone passed, he had the right to retain the possession thereof until his cash payments were returned.
Ownership of the stone or the right to its possession, at the time the criminal prosecution was instituted, is not conclusive on the question of probable cause. However, the decisions of this Court support the view that title to the stone never passed to the defendant since his check for the balance of the purchase price was not paid. Handley Motor Co. v. Wood, 238 N.C. 468, 78 *247 S.E.2d 391; Id., 237 N.C. 318, 75 S.E.2d 312; Weddington v. Boshamer, 237 N.C. 556, 75 S.E.2d 530; Parker v. First-Citizens Bank & Trust Co., 229 N.C. 527, 50 S.E.2d 304; 46 Am.Jur., Sales, § 447, page 613. Furthermore, the fact that the defendant made a deposit with the plaintiff does not change the rule with respect to the passing of title. In the above cited case of Handley Motor Co. v. Wood, supra, James P. Junghans, Jr., made a deposit of $50 in cash on the Ford car involved. A day or two later he gave a worthless check for the balance of the purchase price and obtained possession of the car. We held that since the check for the balance of the purchase price was not paid, the title to the car never passed to Junghans.
The question here is whether the facts and circumstances within the knowledge of the defendant, at the time he instituted the criminal prosecution, were sufficient to induce a reasonably prudent man to believe that the plaintiff took the stone with a felonious intent. Or, to put it another way, were the facts within his knowledge sufficient to induce a reasonably prudent man to suspect that the plaintiff was guilty of the offense charged? Smith v. Deaver, 49 N.C. 513; Wilkinson v. Wilkinson, 159 N.C. 265, 74 S.E. 740; Humphries v. Edwards, 164 N.C. 154, 80 S.E. 165; Mooney v. Mull, 216 N.C. 410, 5 S.E.2d 122; Carson v. Doggett, 231 N.C. 629, 58 S.E.2d 609; 34 Am.Jur., Malicious Prosecution, § 47, page 731.
The second proposition or contention submitted by the defendant is that if the facts be conceded to be insufficient to show probable cause, the defendant ought to be exonerated as a matter of law, since, before instituting the criminal prosecution he consulted a reputable member of the North Carolina State Bar, which is a State agency, and such attorney after being given a full statement of the facts, advised that in his opinion the plaintiff was guilty of larceny.
This contention will not be upheld. It is contrary to the uniform decisions in this jurisdiction with respect to advice of counsel in such cases. Davenport v. Lynch, 51 N.C. 545; Smith v. Eastern Bldg. & Loan Ass'n, 116 N.C. 73, 20 S.E. 963; Thurber v. Eastern Bldg. & Loan Ass'n, 116 N.C. 75, 21 S.E. 193; Downing v. Stone, 152 N. C. 525, 68 S.E. 9, 11. In the last cited case, Hoke, J., in speaking for the Court, said: "The decisions of this state have uniformly held that advice of counsel, however learned, on a statement of facts, however full, does not of itself, and as a matter of law, afford protection to one who has instituted an unsuccessful prosecution against another; but such advice is only evidence to be submitted to the jury on the issue as to malice. * * * And where it is proven that legal advice was taken by a prosecutor, this, too, is a relevant circumstance in connection with other facts, admitted or established, to be considered by the court in determining the question of probable cause. * * * This restriction as to the advice of counsel learned in the law on facts fully and fairly stated does not seem to be in accord with the weight of authority as it obtains in other jurisdictions * * *, but it has been too long accepted and acted on here to be now questioned, and we are of opinion, too, that ours is the safer position."
The third argument submitted on the motion for judgment as of nonsuit is to the effect that the plaintiff waived preliminary examination and gave bond for his appearance in the Superior Court, in which court the grand jury returned a true bill against him. Therefore, the defendant contends that a prima facie case of probable cause was made out and was not rebutted in the trial below. Jones v. Wilmington & W. R. Co., 125 N.C. 227, 34 S.E. 398; Id., 131 N.C. 133, 42 S.E. 559. Conceding all this to be true, except the contention that probable cause was not rebutted in the trial below, nothing more than a prima facie case as to probable cause was made out, but not a conclusive one, and it was still open to the plaintiff to prove there was no probable cause. Bowen v. W. A. Pollard & Co., 173 N.C. 129, 91 S.E. 711; Kelly v. Newark Shoe Stores Co., 190 N.C. 406, 130 S.E. 32; Young v. Andrews Hardwood Co., 200 N.C. *248 310, 156 S.E. 501; Hawkins v. Town of Dallas, 229 N.C. 561, 50 S.E.2d 561.
The final contention on the motion for judgment as of nonsuit is that the plaintiff was tried in the Superior Court in Davie County on the bill of indictment returned by the grand jury, which resulted in a mistrial, but the court held the State's evidence was sufficient to sustain a conviction.
The record of such trial is not in evidence. However, it is apparent from the testimony of some of the witnesses that prior to the trial in which the criminal action against the plaintiff was dismissed, the case was called at a previous term and when the State rested the defendant (the plaintiff in this action), moved for judgment as of nonsuit. The motion was overruled and the witnesses for the defendant (plaintiff herein) were sworn and the court was adjourned for the day. It further appears that when court convened the next morning, the presiding judge was suffering from a serious attack of laryngitis to such an extent that he withdrew a juror and ordered a mistrial.
The ruling in denying the motion for judgment as of nonsuit is not conclusive on the question of probable cause. If it were otherwise, then in all such criminal prosecutions, if the defendant's motion for judgment as of nonsuit was overruled, probable cause would be conclusively established even though the jury acquitted the defendant.
The defendant's exceptions to the refusal of the court below to sustain his motion for judgment as of nonsuit are overruled. We think the plaintiff's evidence sufficient to require its submission to the jury.
The defendant, however, assigns as error that portion of her Honor's charge on the second issue, reading as follows: "Now, members of the jury, when material facts are not in dispute, what constitutes probable cause constitutes a question of law for the Court. If the facts are in dispute, you would find the facts and the Court would tell you what effect the various findings you might make would have, that is, which one would constitute probable cause and which ones would not. Therefore, since all the evidence is that the defendant knew that the reason the plaintiff took the stone was because the check had been dishonored, the Court charges you you would answer this second issue Yes."
We think this assignment of error must be upheld. It was tantamount to a directed verdict in favor of the plaintiff on this issue. The burden of proof on this issue was upon the plaintiff. A directed verdict in favor of a party having the burden of proof is error. City of Shelby v. Lackey, 236 N.C. 369, 72 S.E.2d 757, and cited cases.
For the reasons stated, the defendant is entitled to a new trial and it is so ordered.
New trial.
