South v. . Sisk

*657 CoNNOK, J. The only assignment of error in this appeal is based on plaintiff’s exception to the judgment. There is no contention that the evidence at the trial in the Superior Court was not sufficient to sustain the findings of fact made by the judge and set out in the record. The judgment is supported by these facts, and for that reason must be affirmed. It is well settled as the law in this State and elsewhere that, in the absence of an agreement to the contrary, the delivery of a check by a debtor to his creditor, and the acceptance of the check by the creditor, whether the check is drawn by the debtor, or by a third person, is not a payment of the debt, until and unless the check, upon due presentment, is paid by the drawee bank. In such case the cheek is only a conditional payment. If it is not paid by the drawee bank, upon presentment, the creditor may recover upon the debt or may sue upon the check, at his option. Dewey v. Margolis, 195 N. C., 307, 142 S. E., 22; Hayworth v. Ins. Co., 190 N. C., 757, 130 S. E., 612; Graham v. Warehouse, 189 N. C., 533, 127 S. E., 540; Bank v. Barrow, 189 N. C., 303, 127 S. E., 3; 48 C. J., 617; 21 E. C. L., 60. In the instant case there was an agreement by and between plaintiff and defendants, at the time the cashier’s check was delivered by defendants’ attorney, and accepted by plaintiff, that said check was delivered and accepted in full payment of plaintiff’s note executed by the defendants. The plaintiff subsequently endorsed the cheek, which was payable to his order, and deposited the same in bank to his credit. The check was, therefore, an absolute payment and discharge of the note. 48 C. J., 620. The judgment is Affirmed.