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Your Style Pub. v. Mid Town Bk & Tr. Co.

OPINION FILED NOVEMBER 25, 1986.

YOUR STYLE PUBLICATIONS, INC., ET AL., PLAINTIFFS-APPELLANTS,

v.

MID TOWN BANK AND TRUST COMPANY OF CHICAGO ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. George A. Higgins, Judge, presiding.

PRESIDING JUSTICE BILANDIC DELIVERED THE OPINION OF THE COURT:

Plaintiffs Your Style Publications, Inc., Bruce Hall, and David C. Killen (hereinafter customers), issued their respective checks to plaintiffs William Kelly, Sheldon Mathis, and Willie G. Curry, (hereinafter payees) drawn on their respective banks, defendants Mid Town Bank and Trust Company of Chicago (hereinafter Mid Town), Lake View Trust & Savings Bank, and Aetna Bank. The payees presented the checks for payment to the banks on which they were drawn. The banks refused to cash the checks without payment of a noncustomer "service fee" *fn1 by payees, Kelly, Mathis, and Curry, notwithstanding the fact that the checks were drawn on that bank. The banks considered the payees noncustomers because they did not have an account at that particular bank.

The plaintiffs filed suit against the banks and alleged: (1) wrongful dishonor of the checks presented; (2) breach of contract; (3) misrepresentation of the terms of the checking account agreement; and (4) breach of contract as to third-party beneficiaries. The trial court dismissed all of the counts for failure to state a cause of action. Plaintiffs appeal.

• 1 This court has repeatedly held that a cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiffs to recover. (Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill.2d 179, 187, 380 N.E.2d 790.) Once the court identifies the well-pleaded facts which are to be considered, it must then draw all reasonable inferences therefrom favorable to the pleader. (Bishop v. Ellsworth (1968), 91 Ill. App.2d 386, 391, 234 N.E.2d 49.) No pleading is bad in substance which reasonably informs the opposite party of the nature of the claim which it is called upon to meet. Browning v. Heritage Insurance Co. (1975), 33 Ill. App.3d 943, 947, 338 N.E.2d 912.

The issue is, therefore, when viewing the facts most favorably to the plaintiffs, whether they sufficiently allege all necessary elements of the cause of action. In order to communicate a better understanding of an otherwise technical area, we will track the Your Style-Kelly-Mid Town transaction. The others are substantially the same. The principles of law will apply equally to each of the transactions.

I

Plaintiff William Kelly was employed by plaintiff Your Style Publications. Your Style issued its payroll check drawn on defendant Mid Town Bank and Trust Company where Your Style maintained a checking account. The check unequivocally directed the bank to pay Kelly a sum certain. When Kelly accepted the check for his wages from Your Style, nothing appeared on the face of the check that would cause Kelly to believe that he would receive less than the sum certain designated on the face of the check. Neither Your Style nor Kelly had any reason to believe that Mid Town would pay Kelly less than the sum certain. However, Mid Town paid Kelly less than the sum certain by charging a "service fee." Mid Town deducted the fee because Kelly did not have an account at Mid Town and the bank considered him a "noncustomer." Your Style and Kelly allege that Mid Town "dishonored" the check, violating its duty to them for which they now seek relief.

A

• 2 A check is dishonored when "presentment is duly made and * * * payment is refused." (Ill. Rev. Stat. 1983, ch. 26, par. 3-507.) Mid Town contends that it did not "dishonor" the check because it made payment in full of the face amount of the check. Then, in a separate transaction, Mid Town imposed and received a "service fee" from Kelly. Placing such a strained interpretation on the transaction does violence to the liberal standard by which pleadings are to be construed. Viewing the pleadings in the light most favorable to the plaintiffs, we can reasonably conclude that Mid Town first deducted the "service fee" then paid the balance of the face amount of the check to Kelly. Thus, the allegation of "dishonor" is sufficiently pleaded to survive a motion to dismiss.

B

• 3 The bank also asserts that it has the right to refuse Kelly immediate payment upon presentation of his check over the counter. In support of this right, Mid Town relies on Uniform Commercial Code section 3-506(2), which states "payment of an instrument may be deferred without dishonor pending reasonable examination to determine whether it is properly payable, but payment must be made in any event before the close of business on the day of presentment." Ill. Rev. Stat. 1983, ch. 26, par. 3-506(2).

A review of the pleadings filed by the plaintiffs reveals that Your Style did have sufficient funds to cover Kelly's payroll check. The pleadings further allege that it was indeed Kelly that presented the check to Mid Town for payment. Therefore, viewing the pleadings in the light most favorable to the plaintiffs, we can conclude that Mid Town had sufficient funds on deposit to cover Kelly's check. We can also conclude that there is no question as to the identity of the person presenting the check for payment.

When Kelly appeared at Mid Town with his payroll check received from Your Style, Mid Town had the option of paying the full face amount to Kelly or to refuse payment of the full face amount and risk a charge of "dishonor." Having made its choice, Mid Town should respond. Dismissal of plaintiffs' complaint is not warranted.

C

• 4 Mid Town justifies the "service fee" to "offset the risk" it incurred when it made direct payment to Kelly. However, there is no risk apparent from the record. The pleadings allege that Your Style did have sufficient funds in its account to cover the check issued to Kelly. The pleadings also allege that Kelly, as payee, was indeed the person presenting the check for payment. Therefore, again, we can conclude that Mid Town had sufficient funds on deposit to cover Kelly's check. We can also conclude that there was no question as to the identity of the ...


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