Gray v. American Express Co. , 34 N.C. App. 714 ( 1977 )

239 S.E.2d 621 (1977) 34 N.C. App. 714

Charles L. GRAY, Trading and doing business as Charles L. Gray Company
v.
AMERICAN EXPRESS COMPANY, a corporation.

No. 777DC76.

Court of Appeals of North Carolina.

December 21, 1977.

Ezzell, Henson & Fuerst by Robert L. Fuerst and Thomas W. Henson, Rocky Mount, for plaintiff-appellant. Jordan, Morris & Hoke by Charles B. Morris, Jr., Raleigh, for defendant-appellee.

CLARK, Judge.

Plaintiff brings forward two assignments of error. The first contends that the court committed error in granting defendant's motion for summary judgment. Summary judgment may not be granted if there is any genuine issue as to any material fact. N.C.R.Civ.P. 56(c). Defendant argued that the checks were incomplete and therefore unenforceable as a matter of law. Plaintiff apparently contends, in part, that he met the burden of raising an issue as to whether the date and name of payee were necessary to complete the instrument by introducing the affidavit of J. Edgar Booth which stated that Booth took traveler's checks without hesitation if the top and bottom signatures matched. Such affidavit does suggest that business practice does not require that the name of payee and date be filled in, but Article III of the Uniform Commercial Code is contradictory.

A traveler's check is a negotiable instrument within the purview of Article III of the Uniform Commercial Code. G.S. 25-3-114 explicitly permits an instrument to be undated. Dating therefore is not a necessary element, the absence of which makes the instrument incomplete and unenforceable under G.S. 25-3-115. However, the name of the payee is an essential element. The payee's name is not one of the "[t]erms and omissions not affecting negotiability" under G.S. 25-3-112. G.S. 25-3-104 demands "[a]ny writing to be a negotiable instrument within this article must . . be payable to order or to bearer." [Emphasis added.] G.S. 25-3-104(1)(d). Under old law of commercial paper and now incorporated into the Uniform Commercial Code, a note payable neither to order nor to bearer is not negotiable. Newland v. Moore, 173 N.C. 728, 92 S.E. 367 (1917). Specificity on the face of the instrument is required whether payment be to order or to bearer. Johnson v. Lassiter, 155 N.C. 47, 71 S.E. 23 (1911); G.S. 25-3-111(b). Therefore, it is clear that the checks were legally incomplete because they lacked the name of the payee.

G.S. 25-3-115 permits completion of an incomplete instrument if done "in accordance with authority given . . .." Jones v. Jones, 268 N.C. 701, 151 S.E.2d 587 (1966), construing old law now incorporated into the Uniform Commercial Code, considered that the instrument's primary makers had the authority to complete the instrument by inserting the name of the payee. The holder had final authority. Lawrence v. Mabry, 13 N.C. 473 (1830), held that a bill of exchange drawn and issued in blank for the name of the payee may be filled in by a bona fide holder in his own name, and will bind the drawer. It is clear that plaintiff had the authority to complete the instruments, had nine years so to do, and did not. The instruments remained incomplete and unenforceable as a matter of law.

Plaintiff further contends that defendant is estopped to raise the defense of incompleteness of the instruments because the checks were first refused on the grounds that they were stolen before proper issuance and thus void, that he did not complete the checks because he thought their unenforceability was due to their voidness rather than their incompleteness. Plaintiff did not plead estoppel. Ordinarily, estoppel is not available as a defense unless specifically pleaded. Wright v. Mercury Ins. Co., 244 N.C. 361, 93 S.E.2d 438 (1956). But our Supreme Court has established very liberal rules of amendment of pleadings and, in case of summary judgment will consider the pleadings amended to conform to evidence raised in the affidavits. Whitten v. AMC/Jeep, Inc., 292 N.C. 84, 231 S.E.2d 891 (1977).

In the case sub judice plaintiff has not raised evidence of estoppel in his affidavits sufficient to meet his burden of proof. See Solon Lodge, K. of P. C. v. Ionic Lodge, F. A. & A. M., 245 N.C. 281, 95 S.E.2d 921 (1957). Estoppel exists as a defense for innocent persons misled to their prejudice by fault or dereliction. 3 Strong's N.C. Index, Estoppel § 4. The doctrine has no application where the "innocent" party was misled through his own want of reasonable care and circumspection. Trust Co. v. Finance Co., 262 N.C. 711, 138 S.E.2d 481 (1964). It has no application where both parties are "innocent." Davis v. Montgomery, 211 N.C. 322, 190 S.E. 489 (1937). In the case sub judice plaintiff has not demonstrated anywhere any fault or dereliction on the part of defendant. The issue of whether checks stolen before issuance are void so as to render even a holder in due course without enforcement has not been settled in our jurisdiction, but it is not a "derelict" issue and defendant was neither frivolous nor consciously misleading when it refused to honor the checks. Plaintiff did not raise any evidence of estoppel to defendant's defense that the instruments were unenforceable as a matter of law because incomplete. Summary judgment was properly granted on that ground, and we need not reach either the issue of voidness or plaintiff's second assignment of error.

Affirmed.

BROCK, C. J., and MARTIN, J., concur.