WS CLARK AND SONS, INC. v. Union Nat. Bank

353 S.E.2d 439 (1987)

W.S. CLARK AND SONS, INC., Plaintiff, v. UNION NATIONAL BANK, Defendant, v. Vernon L. STRICKLAND, Third Party Defendant.

No. 869DC699.

Court of Appeals of North Carolina.

March 17, 1987.

*440 Aycock, Harper & Simmons by Edward B. Simmons, Tarboro, for plaintiff-appellant.

Royster, Royster & Cross by T.S. Royster, Jr., Oxford, for defendant-appellee.

No brief for third party defendant.

ORR, Judge.

Plaintiff contends that the trial court erred in granting the defendant's motion for summary judgment. We disagree.

On a motion for summary judgment "[t]he movant must show (1) that there is no genuine issue as to any material fact, and (2) that the moving party is entitled to a judgment as a matter of law." Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975). "The rule is designed to ... allow summary disposition for either party when a fatal weakness in the claim or defense is exposed." Id. When ruling on a motion for summary judgment, "the court must look at the record in the light most favorable to the party opposing the motion." Peterson v. Winn-Dixie, 14 N.C. App. 29, 31, 187 S.E.2d 487, 488 (1972).

Defendant bank has shown that no genuine issue of material fact exists to be decided. The record, even when viewed in the light most favorable to plaintiff, reveals that plaintiff suffered no loss because of defendant bank's actions in regard to the check in question. Therefore, as a matter of law, plaintiff can recover nothing from defendant bank. In Godwin v. Vinson, 254 N.C. 582, 119 S.E.2d 616 (1961), the Supreme Court of North Carolina held that "[a]ctual loss or injury must have been sustained or no compensatory damages are recoverable." 254 N.C. at 587, 119 S.E.2d at 620.

The facts clearly show that plaintiff owed Granville Supply over $23,000.00 in commissions. Rather than pay these commissions outright, plaintiff entered into a setoff agreement with Granville Supply. Under the agreement the commissions owed Granville Supply were offset by certain accounts Granville Supply owed to plaintiff. One of these was the Cox account. When plaintiff offset the Cox account against commissions owed Granville Supply, that account was satisfied in full and the underlying obligation represented by the Cox check no longer existed.

The setoff arrangement between plaintiff and Granville Supply had the same effect as if the Cox check had been paid directly to plaintiff. If the check had been paid to plaintiff, plaintiff still would have owed Granville Supply over $23,000.00 in commissions. Instead, plaintiff offset commissions due Granville Supply by the amount of the Cox account, $9,377.80. This reduced the debt owed to Granville Supply by that amount. The net effect of the two transactions is the same.

We hold that plaintiff suffered no damages as a result of the Cox check. Therefore, the issues of whether Strickland's endorsement was unauthorized and whether defendant bank wrongfully honored it, need not be addressed.

Plaintiff, having suffered no loss arising out of the Cox check, cannot recover anything from defendant bank. Since there is no genuine issue as to whether plaintiff suffered any damage, we hold that the motion for summary judgment was properly granted.

Affirmed.

WELLS and BECTON, JJ., concur.