Discount Auto Mart, Inc. v. Bank of NC

263 S.E.2d 41 (1980)

DISCOUNT AUTO MART, INC. v. BANK OF NORTH CAROLINA.

No. 7910SC568.

Court of Appeals of North Carolina.

March 4, 1980.

*42 Clifton & Singer by Ben F. Clifton, Jr., Raleigh, for plaintiff-appellant.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by John L. Jernigan, and Carl N. Patterson, Jr., Raleigh, for defendant-appellee.

ARNOLD, Judge.

As a general rule, a bank has the right to refuse to allow a depositor to make withdrawals from his account against uncollected funds. See G.S. 25-4-201(1) and -213(4)(a). Plaintiff here argues that defendant has waived this right by allowing plaintiff to make such withdrawals over a period of 15 months. Both parties argue about whether the facts here are sufficient to constitute the waiver of a contract right, but there is no indication in this case that any right arose in contract. Rather, the right is controlled by statute, as indicated above, and the traditional definition of waiver is sufficient. See Wheeler v. Wheeler, 40 N.C.App. 54, 252 S.E.2d 106, cert. granted 297 N.C. 304, 254 S.E.2d 917 (1979).

Waiver is defined simply as the intentional relinquishment of a known right. Green v. P. O. S. of A., 242 N.C. 78, 87 S.E.2d 14 (1955). There is no question that in the period between January 1977 and April 1978, defendant waived its right to limit withdrawal to collected funds in plaintiff's account each time it allowed plaintiff to make a withdrawal against uncollected funds. However, we do not find these waivers to have been prospective as well. Cf. H. Bailey, Brady on Bank Checks, § 17.2 at n. 13 (5th ed. 1979) (bank not required to permit overdrafts though it has previously allowed them for same depositor). Each time plaintiff sought to make a withdrawal against uncollected funds, defendant was entitled to choose whether to stand on or waive its right to refuse to allow such a withdrawal. By returning plaintiff's checks presented for payment in April 1978, defendant made clear its intention *43 not to waive its right on those occasions.

Defendant acted within its rights. Plaintiff has alleged an injury for which there exists no legal remedy. Defendant's Rule 12(b)(6) motion to dismiss was properly granted.

Affirmed.

PARKER and WEBB, JJ., concur.