Johnson v. Hooks , 6 N.C. App. 432 ( 1969 )

BROCK, J.

Plaintiff does not allege a contract with Wachovia. He alleges “. . . Plaintiff volunteered to advance the money necessary to take the account off the hands of Wachovia.” He further alleges “. . . Plaintiff authorized the Wachovia to draw a sight draft on the Plaintiff in care of the Bank of Fuquay and instructed the Wa-chovia to attach their loan papers to the draft.” Just what was meant by “their loan papers” is not clear. In any event, it is clear from the complaint that either the plaintiff accepted and paid the draft as it was drawn, or the' Bank of Fuquay, acting as plaintiff’s agent, accepted and paid the draft as drawn. If plaintiff personally accepted and paid the draft, he did so charged with knowledge that only the title certificate for the automobile was attached. If the Bank of Fuquay, acting as plaintiff’s agent, accepted the draft, it did so charged with knowledge that only the title certificate for the automobile was attached. In either event the draft was accepted and the face amount thereof paid to Wachovia in consideration of delivery to plaintiff of the certificate of title for the automobile. If the Bank of Fuquay acted as agent for plaintiff, it is clear that either plaintiff failed to instruct the Bank of Fuquay upon what conditions it was to accept and pay the draft, or the Bank of Fuquay failed to follow plaintiff’s instructions. There is no allegation of a promise on the part of Wachovia to deliver additional particular “papers,” after acceptance of the draft, nor is there allegation of mutual mistake or fraud in the drawing and acceptance of the draft; therefore, the unconditional acceptance and payment of the draft on or about 3 March 1966 concluded the transaction between plaintiff and Wa-chovia.

The judgment of the District Court sustaining Wachovia’s demurrer to the complaint is

Affirmed.

Bbitt and VaughN, JJ., concur.