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Ifco of South Carolina Inc. v. Southern National Bank of North Carolina

Filed: July 31, 1979.

IFCO OF SOUTH CAROLINA, INC., PLAINTIFF
v.
SOUTHERN NATIONAL BANK OF NORTH CAROLINA, DEFENDANT V. GUARANTY BANK AND TRUST COMPANY OF FLORENCE, SOUTH CAROLINA, INTERVENOR DEFENDANT



Appeal by plaintiff from Battle, Judge. Judgment entered 9 March 1978 in Superior Court, Cumberland County. Heard in the Court of Appeals 9 March 1979.

Webb, Judge. Judges Martin (Robert M.) and Mitchell concur.

Webb

If defendants were entitled to judgment as a matter of law on the undisputed facts, the superior court properly entered summary judgment in their favor. See Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979).

We affirm the judgment of the superior court. The principal question posed by this appeal is whether the maker of a check who examines the check when presented at the bank and instructs the bank to pay it may then collect from the bank for paying the check. We hold that the maker cannot do so. We have not been able to find a case on all fours. Modern Homes Construction Co. v. Tryon Bank and Trust Co., 266 N.C. 648, 657, 147 S.E.2d 37, dissent at 147 S.E.2d 386 (1966) says by way of dictum: "it is clear that drawer's conduct in advising and requesting the Bank to make payment . . . would have estopped drawer in any subsequent suit against the Bank." An argument can be made that when plaintiff's agent examined the checks and instructed Southern National to pay them it had as much right as Southern National to rely on Guaranty's guarantee of the endorsements and by instructing Southern National to pay the checks it did not waive this right. The difficulty with this argument is that plaintiff sued Southern National. Southern National had the right to rely on the instructions of plaintiff as well as Guaranty's guarantee.

Since any liability of Guaranty in this action is predicated on a liability on the part of Southern National, the superior court was correct in allowing summary judgment in favor of both defendants.

Affirmed.

Disposition

Affirmed.

19790731

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