Federal Deposit Ins. Corp. v. West
| Decision Date | 27 September 1979 |
| Docket Number | No. 34984,34984 |
| Citation | 244 Ga. 396,260 S.E.2d 89 |
| Parties | , 27 UCC Rep.Serv. 1335 FEDERAL DEPOSIT INSURANCE CORPORATION v. WEST. |
| Court | Georgia Supreme Court |
Powell, Goldstein, Frazer & Murphy, Robert W. Patrick, Frank Mays Hull, Thomas S. Richey, Atlanta, for appellant.
Taylor W. Jones, Michael R. Uth, Moreton Rolleston, Jr., Atlanta, for appellee.
We granted certiorari to review the case of West v. Federal Deposit Ins. Corp., 149 Ga.App. 342, 254 S.E.2d 392 (1979) and to consider the following issues:
(1) Whether a drawee bank can become a holder in due course of a check drawn on itself under the present provisions of the Uniform Commercial Code, and (2) whether parol evidence is admissible to explain that a signature on a check not indicating agency status in fact does represent such agency status.
The facts of this case are set out in the opinion of the Court of Appeals but basically are these: Checking Account No. 0100201913-01 was opened in the Hamilton Bank & Trust Company. The signature card included the following information: "Name of Corporation: Davidson-Sarasota, Account No. 0100201913-01, Mr. A. Davidson West will sign X A. Davidson West (Signature) as Pres." Davidson-Sarasota is not a corporate name but is a trade name. Mr. West signed many checks on this account creating overdrafts in the amount of $36,715.15. The checks were imprinted "Davidson-Sarasota" and included the encoded account number. Mr. West signed the checks "A. Davidson West" and did not add the language "as Pres." Hamilton Bank & Trust Company was subsequently placed in receivership and the FDIC was appointed receiver. Certain assets of the Bank were sold to an ongoing bank. The FDIC in its corporate capacity as insurer purchased the other assets including the above-mentioned overdrawn checking account. FDIC sued A. Davidson West in his individual capacity since that is the way he signed the checks.
The FDIC was granted summary judgment in the trial court but the Court of Appeals reversed. We affirm the Court of Appeals' decision to reverse the grant of summary judgment but cannot approve all of what was said in its opinion.
In the course of its opinion the Court of Appeals makes the statement that a drawee bank could not be a holder or a holder in due course. While we believe that holding is not vital to this case, we were concerned about its impact on future cases. As authority for its statement the Court of Appeals cited 11 Am.Jur.2d 395, 396, Bills and Notes, § 371. We note, as the FDIC points out, that the cases upon which AmJur relied in making its statement were pre-UCC cases. We also note that since the UCC has been enacted, several courts in other jurisdictions have held that drawee banks can be holders in due course under its provisions. Roland v. Republic National Bank of Dallas, 463 S.W.2d 747 (Tex.Civ.App., 1971); Nida v. Michael, 34 Mich.App. 290, 191 N.W.2d 151 (1971); see also Met Frozen Food Corp. v. National Bank of North America, 89 Misc.2d 1033, 393 N.Y.S.2d 643 (1977). Unfortunately, the cases do not discuss the issue in depth nor indicate why the rule might be different than the pre-UCC rule.
We have carefully studied all sections of Articles 3 and 4 of the UCC along with their official comments to try and determine what the drafters' intent might have been. We find no direct answer but rather discover that some sections and comments seem to indicate one answer while others indicate another. We conclude that there is no compelling reason that a bank cannot be a holder or a holder in due course of an instrument drawn on it if it meets all the qualifications of the status. One simple way for a drawee bank to gain holder in due course status would be to take the instrument from a transferor who is a holder in due course. Code Ann. § 109A-3 201. One of the most useful occasions to assert holder in due course status would be in a case Similar to the case at bar. If a drawee bank turns money over to a collecting bank who is a holder in due course on an instrument which would overdraw the drawee bank's customer's account, it has turned over its own money on the instrument. While the drawee bank has a remedy against its customer under Code Ann. § 109A-4 401, we conclude that it also has a remedy on the instrument Against the drawer 1 provided the drawee does not give up possession of the instrument. 2 A drawee bank cannot sue on an instrument as a holder in due course if it does not continue to be a holder.
While the record is not clear in the case at bar, it seems likely that the checks in issue here were returned to the bank's customer in its bank statement. If the bank has given up possession of the instruments, it is no longer a holder of them. Since this case is being reversed for further proceedings, that issue may still be developed.
For now we will assume that the instruments causing the overdrafts were returned to the bank's customer. The drawee bank, having elected to pursue its remedy of charging its depositor's account under Code Ann. § 109A-4 401, must look to its depositor for repayment. The deposit agreement, if any, the signature card and the checks drawn against the account are the contract documents between the bank and the customer. The identity of the depositor, Davidson-Sarasota, as amplified by the signature card, and the checks drawn on that account number, in this case is ambiguous 3 and so parol evidence is necessary to determine the correct identity. Code Ann. § 109A-3 403 is not involved as this is not a suit on the instrument itself but rather on the underlying debt caused by...
To continue reading
Request your trial
-
Kiley v. First Nat. Bank of Maryland
...the contract between the parties and, subject to the statutory schemes, regulates their rights and duties."); Fed. Deposit Ins. Corp. v. West, 244 Ga. 396, 260 S.E.2d 89, 91 (1979) ("[T]he signature card and the checks drawn against the account are the contract documents between the bank an......
-
Southtrust Bank of Georgia v. Parker
...Discount Corp. v. Guest, 103 Ga.App. 258(1), 118 S.E.2d 864 (1961); West v. FDIC, 149 Ga.App. 342, 349, 254 S.E.2d 392, aff'd. 244 Ga. 396, 260 S.E.2d 89 (1979). Under OCGA § 11-3-304(1)(a), there existed no visible evidence of forgery or alteration to put the holder in due course on notice......
-
First Union Nat. Bank of Georgia v. Davies-Elliott, Inc.
...card and the checks drawn against the account are the contract documents between the bank and the customer." Fed. Deposit Ins. Corp. v. West, 244 Ga. 396, 399, 260 S.E.2d 89 (1979). 944, Inc. v. Ga. State Bank, 198 Ga.App. 893, 894(1), 403 S.E.2d 466 (1991). Therefore, there was evidence fr......
-
Honeycutt v. Honeycutt, 68
...contract between the parties and, subject to the statutory schemes, regulates their rights and duties."); Fed. Deposit Ins. Corp. v. West, 244 Ga. 396, 260 S.E.2d 89, 91 (Ga.1979) ("The signature card and the checks drawn against the account are the contract documents between the bank and t......