Paris v. Carolina Builders Corporation , 244 N.C. 35 ( 1956 )

92 S.E.2d 405 (1956) 244 N.C. 35

Joe PARIS, Employee,
v.
CAROLINA BUILDERS CORPORATION, Employer, and
Hartford Accident and Indemnity Company, Carrier.

No. 455.

Supreme Court of North Carolina.

May 2, 1956.

Smith, Leach, Anderson & Dorsett, Raleigh, for plaintiff.

Ruark, Young & Moore, Raleigh, for defendants.

DENNY, Justice.

The Commission, upon its own motion, or upon the application of any party in interest, on the grounds of a change in condition, may review any award and on such review may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum compensation allowable by the Compensation Act. Provided, however, no such review shall be made after twelve months from the date of the last payment of compensation pursuant to an award as provided in the Act, or when no award has been made for compensation no such review shall be made after twelve months from the date of the last payment of bills for medical or other treatment pursuant to the provisions of the Compensation Act. G.S. § 97-47; Tucker v. Lowdermilk, 233 N.C. 185, 63 S.E.2d 109; Whitted v. Palmer-Bee Co., 228 N.C. 447, 46 S.E.2d 109; Knight v. Ford Body Co., 214 N.C. 7, 197 S.E. 563; Lee v. Rose's 5-10-25¢ Stores, Inc., 205 N.C. 310, 171 S.E. 87.

It follows, therefore, that the determinative question posed on this appeal is whether the request for review on the grounds of a change in plaintiff's condition was made within twelve months of the date of the last payment of compensation, pursuant to an award under the Compensation Act.

The appellant contends that the date of the last payment of compensation made to him within the meaning of G.S. § 97-47 was on the 7th day of November, 1952, the date on which the draft was paid by the Hartford-Connecticut Trust Company of Hartford, Connecticut. He relies upon the well recognized rule that in the absence of an agreement to the contrary, the delivery and acceptance of a check is not payment until the check is paid, citing Peek v. Wachovia Bank & Trust Co., 242 N.C. 1, 86 S.E.2d 745; Wilson v. Commercial Finance Co., 239 N.C. 349, 79 S.E.2d 908; Andrews-Cooper Lumber Co. v. Hayworth, 205 N.C. 585, 172 S.E. 194, and similar cases. However, there is another well established rule, and that is that when a draft or check is accepted in payment of an obligation and is paid on presentation, payment ordinarily relates back to the time the draft or check was delivered to the payee or his duly authorized agent. 40 Am. Jur., Payment, section 86, page 775; 70 C.J.S., Payment, § 12, p. 219 et seq.; Hooker v. Burr, 137 Cal. 663, 70 P. 778, 99 Am. St.Rep. 17, affirmed in 194 U.S. 415, 24 S. Ct. 706, 48 L. Ed. 1046; McFadden v. Follrath, 114 Minn. 85, 130 N.W. 542, 37 L.R.A.,N.S., 201; Tonnar v. Wade, 153 Miss. 722, 121 So. 156; Franciscan Hotel Co. v. Albuquerque Hotel Co., 37 N.M. 456, 24 P.2d 718; Hunter v. Wetsell, 84 N.Y. 549, 38 Am.Rep. 544; Texas Mutual Life Ins. Ass'n v. Tolbert, 134 Tex. 419, 136 S.W.2d 584; Ruppert v. Edwards, 67 Nev. 200, 216 P.2d 616; Annotation: 1 British Ruling Cases, 494. Cf. Kendrick v. Mutual Ben. Life Ins. Co., 124 N.C. 315, 32 S.E. 728, 70 Am.St. Rep. 592; Whitley v. Peidmont & Arlington Life Ins. Co., 71 N.C. 480.

In the case of Marreco v. Richardson, 1 British Ruling Cases, 485, at page 494, Farwell, L. J., in considering the identical point we have under consideration, said: "Byrne, J., held that a cheque or a bill of exchange given in respect of a pre-existing debt operated as a conditional payment thereof, and on the condition being performed by actual payment, the payment related back to the time when the cheque or bill was given. That is only expressing the same principle in another form, and I should myself prefer to say that the giving of a cheque for a debt is payment conditional on the cheque being met, that is, subject to a condition subsequent, and if the cheque is met it is an actual payment ab initio."

Likewise, in Ruppert v. Edwards, supra [67 Nev. 200, 216 P.2d 624], in considering the same question we have before us, the Court said: "So, in such a transaction as that involved in the instant case, payment is payment when completed delivery is had, and to that extent is evidence of the existing obligation, but it is conditional merely, according to the great weight of authority, and continues such until the check is paid on presentation; thereupon, the condition having been satisfied by the check having been paid, the same becomes absolute. The payment conditionally contemplated is not what is construed properly as a condition precedent, but rather a condition subsequent. The condition having been subsequently satisfied by the check having been paid, ``the debt is deemed to have been discharged from the time the check was given.'"

The appellant further contends that he should have been allowed twelve months in which to request a review from the last date on which the compensation would have been due had he not elected to accept payment of the award in a lump sum. This contention is not supported by the statute which authorizes review for a change in a claimant's condition. G.S. § 97-47. Cf. Tucker v. Lowdermilk, supra.

Treating the letter addressed to the Commissioner of Labor on 1 November, 1953, and later received by the Commission on 4 November, 1953, as a request for review, we hold that it was received more than twelve months after the date of the last payment of compensation, to-wit, the 1st day of November, 1952. However, it will be noted that no formal request for a review of the award theretofore entered in favor of the plaintiff, was filed with the Commission until the 18th day of January, 1954.

The judgment of the court below is

Affirmed.

JOHNSON, J., took no part in the consideration or decision of this case.