First-Citizens Bank & Trust Co. v. Perry

252 S.E.2d 288 (1979)

40 N.C. App. 272

FIRST-CITIZENS BANK & TRUST COMPANY v. Jack PERRY, d/b/a Perry's Construction Company.

No. 783SC369.

Court of Appeals of North Carolina.

March 6, 1979.

*289 Ward & Smith, by John A. J. Ward, New Bern, for plaintiff.

William K. Rhodes, Jr., Wilmington, for defendant appellant.

HARRY C. MARTIN, Judge.

Defendant contends the evidence in his affidavit concerning the failure of plaintiff to deliver timely bank statements to him raises a genuine issue of material fact as to plaintiff's claim. We do not agree.

Defendant admits he wrote the 181 checks in the total amount of $86,268.99; that these checks were drawn on his account with plaintiff bank; that the checks were paid by plaintiff to the respective payees or endorsers. Defendant fails to controvert plaintiff's evidence that defendant did not have sufficient funds on deposit to pay the checks when processed and that defendant has never paid any of the checks, although plaintiff has made demand on him for payment.

*290 "As against its customer, a bank may charge against his account any item which is otherwise properly payable from that account even though the charge creates an overdraft." N.C.Gen.Stat. 25-4-401(1). "It is fundamental that upon proper payment of a draft the drawee may charge the account of the drawer. This is true even though the draft is an overdraft since the draft itself authorizes the payment for the drawer's account and carries an implied promise to reimburse the drawee." N.C.Gen.Stat. 25-4-401, Official Comment. The general view is that payment of any overdraft by a bank amounts to a loan to the depositor, and the amount may be recovered from the depositor. The action to recover the amount of the overdraft is based upon the implied promise which arises from the drawing of the check and the honoring of it by the bank. 10 Am.Jur.2d Banks § 655 (1963); Continental Bank v. Fitting, 114 Ariz. 98, 559 P.2d 218 (1977); State v. Mullin, 225 N.W.2d 305 (Iowa 1975).

The trial court found facts in its order granting the summary judgment. This practice is not approved. However, the pleadings and evidence before the court on the motion for summary judgment failed to disclose any genuine issue as to any material fact.

The entry of summary judgment is

Affirmed.

MORRIS, C. J., and CARLTON, J., concur.