Gray v. American Exp. Co., 777DC76
| Citation | 34 N.C.App. 714, 239 S.E.2d 621 |
| Case Date | December 21, 1977 |
| Court | Court of Appeal of North Carolina (US) |
Page 621
v.
AMERICAN EXPRESS COMPANY, a corporation.
Ezzell, Henson & Fuerst by Robert L. Fuerst and Thomas W. Henson, Rocky Mount, for plaintiff-appellant.
Page 623
Jordan, Morris & Hoke by Charles B. Morris, Jr., Raleigh, for defendant-appellee.
CLARK, Judge.
Plaintiff brings forward two assignments of error. The first contends that the court committed error in granting defendant's motion for summary judgment. Summary judgment may not be granted if there is any genuine issue as to any material fact. N.C.R.Civ.P. 56(c). Defendant argued that the checks were incomplete and therefore unenforceable as a matter of law. Plaintiff apparently contends, in part, that he met the burden of raising an issue as to whether the date and name of payee were necessary to complete the instrument by introducing the affidavit of J. Edgar Booth which stated that Booth took traveler's checks without hesitation if the top and bottom signatures matched. Such affidavit does suggest that business practice does not require that the name of payee and date be filled in, but Article III of the Uniform Commercial Code is contradictory.
A traveler's check is a negotiable instrument within the purview of Article III of the Uniform Commercial Code. G.S. 25-3-114 explicitly permits an instrument to be undated. Dating therefore is not a necessary element, the absence of which makes the instrument incomplete and unenforceable under G.S. 25-3-115. However, the name of the payee is an essential element. The payee's name is not one of the "(t)erms and omissions not affecting [34 N.C.App. 716] negotiability" under G.S. 25-3-112. G.S. 25-3-104 demands "(a)ny writing to be a negotiable instrument within this article must . . . be payable to order or to bearer." (Emphasis added.) G.S. 25-3-104(1)(d). Under old law of commercial paper and now incorporated into the Uniform Commercial Code, a note payable neither to order nor to bearer is not negotiable. Newland v. Moore, 173 N.C. 728, 92 S.E. 367 (1917). Specificity on the face of the instrument is required whether payment be to order or to bearer. Johnson v. Lassiter, 155 N.C. 47, 71 S.E. 23 (1911); G.S. 25-3-111(b). Therefore, it is clear that the checks were legally incomplete because they lacked the name of the payee.
G.S. 25-3-115 permits...
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...Article Three); see also Savings & Loan Assoc. v. Trust Co., 282 N.C. 44, 54, 191 S.E.2d 683, 690 (1972); Gray v. American Express Co., 34 N.C.App. 714, 716, 239 S.E.2d 621, 623 (1977); but see Security Pacific Nat'l Bank v. Chess, 58 Cal.App.3d 555, 561 and 561 n. 7, 129 Cal.Rptr. 852, 856......
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...823 (1971). "Summary judgment may not be granted if there is any genuine issue as to any material fact." Gray v. American Express Co., 34 N.C.App. 714, 715, 239 S.E.2d 621, 623 (1977). In ruling on defendant's motion for summary judgment, the court must consider any evidence in the light mo......
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