Reeves v. Jurney

225 S.E.2d 615 (1976)

29 N.C. App. 739

Paul T. REEVES, t/a Reeves Auction Company & Realty v. Jack Powell JURNEY.

No. 7523DC970.

Court of Appeals of North Carolina.

June 16, 1976.

*616 Edmund I. Adams, Sparta, for plaintiff-appellant.

Arnold L. Young, Sparta, for defendant-appellee.

PARKER, Judge.

The court erred in ruling that plaintiff lacks interest to prosecute this action. Under the pleadings this action was not brought to enforce or to recover on the contract of sale as to which plaintiff was not a party. It was brought to recover on the check payable to plaintiff on which payment was stopped. "A check is a contract within itself. By the act of drawing and delivering it to the payee, the drawer commits himself to pay the amount of the check in event the drawee refuses payment upon presentment." Kirk Co. v. Styles, Inc., 261 N.C. 156, 159, 134 S.E.2d 134, 136 (1964). By acting in apt time, the drawer of a check may stop its payment, G.S. 25-4-403, but "his revocation of the bank's authority to pay the check does not discharge his liability to the payee or holder." Kirk Co. v. Styles, Inc., supra, p. 159, 134 S.E.2d p. 137. Plaintiff's disclaimer of any personal interest in proceeds of the check and his testimony that he considered such proceeds to be the property of the Osbornes did not deprive him of the right to maintain this action. G.S. 1A-1, Rule 17(a) includes provision that "a party with whom or in whose name a contract has been made for the benefit of another . may sue in his own name without joining with him the party for whose benefit the action is brought."

The court also erred in refusing to consider the ratification filed by the Osbornes. Rule 17(a) provides that "[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest."

The judgment appealed from is reversed and this cause is remanded for further proceedings consistent herewith.

Reversed and remanded.

BRITT and CLARK, JJ., concur.