Paris v. Carolina Builders Corporation

Denny, J.

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 *38 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. Body Co., 214 N.C. 7 , 197-S.E. 563;

Lee v. Rose’s 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. Trust Co., 242 N.C. 1 , 86 S.E. 2d 745 ;

Wilson v. Finance Co., 239 N.C. 349 , 79 S.E. 2d 908 ;

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, section 12, page 219, et seq.; Hooker v. Burr, 137 Cal. 663 , 70 P 778 , 99 Am. St. Rep. 17 , affirmed in 194 U.S. 415 , 48 L. ed. 1046, 24 S.Ct. 706 ;

McFadden v. Follrath, 114 Minn. 85 , 130 N.W. 542 , 37 L.R.A. (NS). 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 Mut. L. Ins. Asso. v. Tolbert, 134 Tex. 419 , 136 S.W. 2d 584 ;

Ruppert v. Edwards, 67 Nev. 200 , 216 P. 2d 616 ; Anno.: 1 British Ruling Cases, 494.

Cf. Kendrick v. Ins. Co., 124 N.C. 315 , 32 S.E. 728 , 70 Am. St. Rep. 592 ;

Whitley v. 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 á conditional-payment thereof, and on the condition being performed by ac *39 tual 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 ah initio.”.

Likewise, in Ruppert v. Edwards, supra, 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 as 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 the presentation; thereupon, the condition having been satisfied by the check having been paid, the same becomes absolute. The payment'-'coriditionally contemplated is not what is construed properly as a condition precedent, but rather a condition subsequent. Tlae condition having been-subsequently satisfied by the check having been paid,-‘the debt is deemed to have been discharged /rom 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 oii 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 statutes 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 1st November, 1953, and later received by the Coanmission on 4th 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 Coanmission 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.