Weddington v. Boshamer

Annotate this Case

75 S.E.2d 530 (1953)

237 N.C. 556

WEDDINGTON v. BOSHAMER.

No. 387.

Supreme Court of North Carolina.

April 15, 1953.

*531 M. B. Sherrin, Jr. and John Hugh Williams, Concord, for plaintiff, appellant.

Mullen, Holland & Cooke and Verne E. Shive, Gastonia, for defendant, appellee.

DENNY, Justice.

We think it is clear from the evidence adduced in the trial below that the agreement between the plaintiff and the defendant for the purchase and sale of the knitting machines in question was intended to constitute a cash transaction, subject only to the confirmation of the defendant's bid at the bankruptcy sale. Plaintiff's own testimony supports this view, and when the defendant ascertained that the plaintiff's check given in payment for these machines was worthless, he had the right to rescind the sale.

It is the settled law in this jurisdiction that where personal property is sold for a cash consideration and the buyer gives a check for the purchase price, the check, in *532 the absence of an agreement to the contrary, Dewey v. Margolis & Brooks, 195 N.C. 307, 142 S.E. 22, does not constitute payment until it has been paid by the drawee bank. "A worthless check is not a payment." Hayworth v. Philadelphia Life Insurance Co., 190 N.C. 757, 130 S.E. 612, 613. In such cases, as between the parties, the transfer of title is conditioned upon the payment of the check by the bank on which it is drawn; and if the check is dishonored by the bank and not paid, or its invalidity is otherwise established, no title to the property passes to the purchaser. Handley Motor Co. v. Wood, 237 N.C. 318, 75 S.E.2d 312; Parker v. First-Citizens Bank & Trust Co., 229 N.C. 527, 50 S.E.2d 304, and cases cited; 46 Am.Jur., Sales, section 447, page 613. See also Davidson v. Diamond Furniture Co., 176 N.C. 569, 97 S.E. 480.

In this case, the plaintiff admits that at the time he issued the check in question, he did not have sufficient funds in the bank on which it was drawn to cover it, nor did he deposit sufficient funds to do so until two days later. In the meantime the defendant ascertained that the check was "no good," elected to rescind the sale and so informed the plaintiff and returned his check.

The ruling of the court below will be upheld, and the judgment is affirmed.