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Lialios v. Home Insurance Cos.

OPINION FILED AUGUST 18, 1980.

GREGORY LIALIOS, PLAINTIFF-APPELLEE,

v.

THE HOME INSURANCE COMPANIES, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. MEYER H. GOLDSTEIN, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

Plaintiff, Gregory Lialios, brought suit against defendant, The Home Insurance Companies, the drawer of a draft, alleging that he was a holder in due course and seeking $1275, the face amount of the draft.

On December 21, 1978, defendant settled a workman's compensation claim with Costas Moulopoulos for $1275. On that date, defendant through its duly authorized agent, issued draft No. 19668648, drawn upon defendant, payable through Citibank, New York, New York, and made payable to Moulopoulos. The draft states on its face "upon acceptance pay to the order of Costas Moulopoulos."

On December 28, 1978, Moulopoulos returned to defendant and stated that he lost draft No. 19668648 and requested another draft. Defendant issued a stop payment order on draft No. 19668648 and issued Moulopoulos another draft.

Moulopoulos had not lost draft No. 19668648, but instead had negotiated it to plaintiff. When plaintiff's bank presented draft No. 19668648 to Citibank, payment was refused due to defendant drawer's stop payment order.

Plaintiff brought action against defendant drawer, alleging he was a holder in due course. Defendant filed a motion to strike plaintiff's complaint, alleging the draft was conditional and therefore not a negotiable instrument. Plaintiff filed a motion for summary judgment.

The trial court granted plaintiff's motion for summary judgment and denied defendant's motion to strike plaintiff's complaint. Defendant appeals.

The sole issue upon review is whether draft No. 19668648 was a negotiable instrument. Section 3-104(1) of the Uniform Commercial Code (Ill. Rev. Stat. 1977, ch. 26, par. 3-104(1)) sets the requirements for negotiability:

"(1) Any writing to be a negotiable instrument within this Article must

(a) be signed by the maker or drawer; and

(b) contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as authorized by this Article; and

(c) be payable on demand or at a definite time; and

(d) be payable to order or to bearer."

Defendant contends that the words "upon acceptance" indicate a conditional promise to pay. It further contends that the draft was not ...


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