Bennett v. United States Fidelity and Guaranty Co.

198 S.E.2d 33 (1973)

19 N.C. App. 66

Stephen G. BENNETT v. UNITED STATES FIDELITY AND GUARANTY COMPANY.

No. 7310DC462.

Court of Appeals of North Carolina.

July 25, 1973.

Certiorari Denied October 2, 1973.

*34 Bennett & McConkey, P. A. by John P. Simpson, Moorehead City, for plaintiff-appellant.

Maupin, Taylor & Ellis by Richard C. Titus, Raleigh, for defendant-appellee.

Certiorari Denied by Supreme Court October 2, 1973.

MORRIS, Judge.

Plaintiff contends that he is entitled, under G.S. § 25-3-302, to the amount of the draft. G.S. § 25-3-302 defines a holder in due course as one who takes an instrument for value, and in good faith, and without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.

The undisputed evidence discloses that plaintiff was without notice of the defense of the issuer and that he took the instrument in good faith and for the purpose of purchasing an automobile to replace the one wrecked by defendant's insured. The only question about which the parties disagree is whether plaintiff took the check for value.

G.S. § 25-3-303 defines taking for value as follows:

"A holder takes the instrument for value (a) to the extent that the agreed consideration *35 has been performed or that he acquires a security interest in or a lien on the instrument otherwise than by legal process; or (b) when he takes the instrument in payment of or as security for an antecedent claim against any person whether or not the claim is due; or (c) when he gives a negotiable instrument for it or makes an irrevocable commitment to a third person."

Plaintiff earnestly contends that he comes within the purview of the definition for two reasons.

He first contends that the evidence discloses that he took the check in payment of an antecedent claim against Wilbur Lee Prince and, therefore, he took the check for value. There is no dispute about the fact that the car was registered in the name of plaintiff's mother. Plaintiff, therefore, had no claim against Prince for the damage to the car. See G.S. § 20-38(19) for definition of "owner" as person holding legal title to a motor vehicle, and 61 C.J.S. Motor Vehicles § 500, pp. 253-254. On appeal he says, however, that he had a claim against Prince for damage to personal property in the car at the time of the wreck. A close examination of the record, and particularly the deposition and affidavit of plaintiff, reveals absolutely no evidence of whether plaintiff had any property in the car and if so, what it was. In his affidavit, plaintiff said: "The value given by him to Wilbur Lee Prince was full settlement of any claim that he might have against Wilbur Lee Prince for the loss of any personal property Wilbur Lee Prince was responsible for when the Datsun automobile was damaged," but nowhere does he contend that he did in fact have any personal property in the car. Plaintiff has failed to present any evidence which would tend to show any legal claim against either payee, which plaintiff had and relinquished.

He also contends that he gave value by virtue of the provisions of G.S. § 25-3-303 (c) in that he made an irrevocable commitment to a third person. Plaintiff contends and the evidence reveals that he intended to use the amount of the check for the purchase of a new car. He stated in his deposition that the insurance draft was delivered to him; that he carried it to his mother and to Prince for endorsement and then deposited it in his checking account at Wachovia Bank and Trust Company; that he was told at the time he made the deposit that it would take "a couple of days to clear"; that he then called the insurance agent who suggested that he postdate the check he was to give in payment for the car he was buying; that he then went to the dealer and followed this suggestion.

The official comment to G.S. § 25-3-303(c) is as follows:

"Paragraph (c) is new, but states generally recognized exceptions to the rule that an executory promise is not value. A negotiable instrument is value because it carries the possibility of negotiation to a holder in due course, after which the party who gives it cannot refuse to pay. The same reasoning applies to any irrevocable commitment to a third person, such as a letter of credit issued when an instrument is taken."

We are of the opinion that the wording of the statute contemplates a simultaneous transactiona commitment to a third person made when the holder takes the instrument. We do not construe it to include a commitment made subsequent to the taking of the instrument. We hold, therefore, that plaintiff's subsequent reliance on the payment of the draft does not constitute a taking for value necessary to put plaintiff in the position of holder in due course.

The undisputed facts establish that plaintiff is not a holder in due course. The *36 court properly granted defendant's motion for summary judgment.

Affirmed.

CAMPBELL and PARKER, JJ., concur.