Harford Mutual Insurance v. Barfield , 105 Ga. App. 266 ( 1962 )

Franicum, Judge.

R. E. Barfield, defendant in error (hereinafter referred to as the plaintiff), brought a suit against Harford Mutual Insurance Company, plaintiff in error (hereinafter referred to as defendant), on a draft, a copy of which is attached to the petition. The petition alleges that the defendant drew a draft payable to the order of the plaintiff and one Lewis M. Elkins and delivered the same to the plaintiff. The plaintiff alleges facts showing that he is the owner and holder of the draft; that it was endorsed in blank by Lewis M. Elkins; that he “deposited said draft in his bank account”, and that “payment of said draft was thereafter stopped without notice to plaintiff.” Held:

Decided February 6, 1962. George A. Edmund, Archie L. Gleason, for plaintiff in error. Robert E. Barfield, contra.

1. Code § 14-602 provides, in part: “The drawer by drawing the instrument admits the existence of the payee and his then capacity to indorse; and engages that on due presentment the instrument will be accepted or paid, or both, according to its tenor, . . .he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to pay it . . .” See also Jett v. Atlanta Fed. Sav. &c. Assn., 104 Ga. App. 688 (123 SE2d 27); Associates Discoimt Corp. v. Brantley, 102 Ga. App. 751 (117 SE2d 916). The plaintiff is a payee'of the instrument and is a holder subject to any defense available to the drawer. Pendley v. Credit Equipment Corp., 92 Ga. App. 658 (89 SE2d 567). See Code § 14-508. The petition sets forth sufficient facts to allege a cause of action under Code § 14-501, which provides in part: “The holder of a negotiable instrument may sue thereon in his own name; . . .”

2. It is not necessary for the plaintiff to show notice of dishonor of the draft to1 the drawer because the drawer and the drawee are the same legal entity, and the drawer countermanded payment. Code § 14-826 (1, 5); Jett v. Atlanta Fed. Sav. &c. Assn., 104 Ga. App. 688, supra.

3. The court did not err in overruling defendant’s general demurrer.

Judgment affirmed.

Nichols, P. J., and Jordan, J., concur.