Diemar & Kirk Company v. Smart Styles, Inc.

134 S.E.2d 134 (1964)

261 N.C. 156

DIEMAR & KIRK COMPANY v. SMART STYLES, INC.

No. 527.

Supreme Court of North Carolina.

January 17, 1964.

*136 Miller & Beck, Asheboro, for plaintiff appellee.

Ottway Burton, Asheboro, for defendant appellant.

SHARP, Justice.

The complaint alleges, and the answer admits, these facts: Defendant executed and delivered to the plaintiff the two checks upon which this suit is brought as payment on account. Both checks were duly presented to the drawee bank for payment. Both were returned unpaidone because defendant had insufficient funds on deposit with which to pay it, and the other because defendant had stopped payment on it. Defendant's appeal raises this question: Do these specific admissions, followed only by a general denial in the answer that the defendant is indebted to the plaintiff, entitle plaintiff to a judgment on the pleadings for the amount of the two checks?

A check is an instrument by which a depositor seeks to withdraw funds from a bank. It is a bill of exchange drawn on a bank and payable upon demand. G.S. § 25-192; State v. Ivey, 248 N.C. 316, 103 S.E.2d 398. Ordinarily a check is given for a debt contracted or money borrowed and, in a commercial transaction as well as in law, it is equivalent to the drawer's promise to pay the payee or holder. An action may be brought on it as upon a promissory note payable on demand. Camas Prairie State Bank v. Newman, 15 Idaho 719, 99 P. 833, 21 L.R.A.,N.S., 703, 128 Am.St.Rep. 81, 88; 11 Am.Jur.2d, Bills and Notes § 591. As a practical matter, in business transactions, there is little difference between a check and a demand note. Both are acknowledgements of indebtedness and an unconditional promise to pay. Smith v. Treuthart, 130 Misc. 394, 223 N.Y.S. 481; 11 Am.Jur.2d, Bills and Notes § 591; Deal v. Atlantic Coast Line R. Co., 225 Ala. 533, 144 So. 81, 86 A.L.R. 455.

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 the event *137 the drawee refuses payment upon presentment. Deal v. Atlantic Coast Line R. Co., supra; Permenter v. Bank of Green Cove Springs, Fla.App., 136 So. 2d 377; Williams v. Lowe, 62 Ind.App. 357, 113 N.E. 471. A negotiable instrument is deemed prima facie to have been issued for a valuable consideration and not as a gift unless the circumstances indicate otherwise. G.S. § 25-29; Francis' Executor v. Francis, Ky., 280 S.W.2d 192.

The drawer of a check has the right, at any time prior to acceptance by the bank, to stop its payment. In re Will of Winborne, 231 N.C. 463, 57 S.E.2d 795; First-Citizens Bank & Trust Co. v. Raynor, 243 N.C. 417, 90 S.E.2d 894. However, his revocation of the bank's authority to pay the check does not discharge his liability to the payee or holder. 10 C.J.S. Bills and Notes § 35. The situation becomes the same as if the check had been dishonored and notice thereof given to the drawer. Flynn v. Currie, 130 Me. 461, 157 A. 310; Annot., 14 A.L.R. 562.

The execution, delivery, presentment and nonpayment of the two checks in suit were not issuable facts. They were alleged in the complaint and admitted by the answer. Hutchins v. Davis, 230 N.C. 67, 52 S.E.2d 210. The checks were deemed prima facie to have been issued for a valuable considerationand, in addition, the answer admitted that they represented payment on account.

Failure of consideration was a defense available to the defendant if he desired to plead it. G.S. § 25-33; Mills v. Bonin, 239 N.C. 498, 80 S.E.2d 365. However, this is an affirmative defense and therefore must be specifically pleaded by setting out the applicable facts. Godwin v. Cooper, 227 N.C. 700, 41 S.E.2d 734. Failure of consideration may not be shown under a general denial of indebtedness. 1 McIntosh, N.C. Practice and Procedure, § 1236(9); 11 C.J.S. Bills and Notes § 649b.

Where new matter constituting a defense to a negotiable instrument is properly alleged in the answer, the plaintiff is not entitled to a judgment on the pleadings even though the answer admits the execution and nonpayment of the instrument. Carroll v. Brown, 228 N.C. 636, 46 S.E.2d 715; Stelling v. Wachovia Bank & Trust Co., 213 N.C. 324, 197 S.E. 754. However, "(a)n answer is fatally deficient in substance and subject to a motion by the plaintiff for judgment on the pleadings if it admits every material averment in the complaint and fails to set up any defense or new matter sufficient in law to avoid or defeat the plaintiff's claim." Erickson v. Starling, 235 N.C. 643, 71 S.E.2d 384. Such is the situation in the instant case. It is controlled by Godwin v. Cooper, supra.

The judgment on the pleadings is

Affirmed.