Tifco, Inc. v. Insurance Designers Underwriters Group, Inc., 7621SC291

• Decision Date: 15 September 1976
• Docket Number: No. 7621SC291,7621SC291
• Citation: 228 S.E.2d 60,30 N.C.App. 641
• Court: North Carolina Court of Appeals
• Parties: TIFCO, INC., a Maryland Corporation, v. INSURANCE DESIGNERS UNDERWRITERS GROUP, INC., a/k/a Insurance Designers Underwriters Group, Ltd., et al.

Page 60

228 S.E.2d 60

30 N.C.App. 641

TIFCO, INC., a Maryland Corporation, v. INSURANCE DESIGNERS UNDERWRITERS GROUP, INC., a/k/a Insurance Designers Underwriters Group, Ltd., et al.

No. 7621SC291.

Court of Appeals of North Carolina.

Sept. 15, 1976.

Craige, Brawley, Liipfert & Ross by C. Thomas Ross, Winston-Salem, for plaintiff.

Surratt & Early by John R. Surratt, Winston-Salem for defendant NCNB.

BROCK, Chief Judge.

North Carolina National Bank has only one interest in this lawsuit. That is to see that it pays the certificates of deposit without leaving outstanding claims against them which could be enforced against the bank.

The pleadings do not seek an adjudication of ownership of the certificates of deposit nor of the obligation of NCNB to pay them to a particular party. Indeed the allegations in the motion to modify the previous judgments recognize the necessity of presenting endorsements as required by NCNB. This is not to say that NCNB has an unbridled right to require unnecessary endorsements or assignments, but in this case there is no evidence of what kind, or by whom, endorsements or assignments, if any, have been made. The judgment appealed from seems to assume that all necessary endorsements or assignments will be made and directs NCNB to pay plaintiff.

As pointed out, the pleadings do not seek an adjudication of ownership or right to proceeds of the certificates of deposit, and no evidence was offered upon the subject. The pleadings do not seek an adjudication of the obligation of NCNB to pay the proceeds of the certificates of deposit to any particular party, and no evidence was offered upon the subject. The motion for modification merely sought to lift the ban against negotiation of the certificates of deposit.

It seems clear that the relief granted by the judgment appealed from was different in kind from the relief sought. 'A judgment by default shall not be different in kind from . . . that prayed for in the demand for judgment.' G.S. 1A--1, Rule 54(c).

The judgment is clearly excessive in that it orders NCNB to pay, thereby denying to NCNB any rights the bank has as a payor under Chapter 25 of the General Statutes of North Carolina. It denies to NCNB the right to require presentment under G.S. 25--3--505. It denies to NCNB the rights to require proper endorsements or assignments under G.S. 25--3--507 or to refuse payment until Tifco establishes itself as holder in due course or holder for value as allowed under G.S....