CO Code § 4-3-206 (2021)
2021 Colorado Code|Title 4 - Uniform Commercial Code|Article 3 - Negotiable Instruments|Part 2 - Negotiation, Transfer, and Indorsement|§ 4-3-206. Restrictive Indorsement

  An indorsement limiting payment to a particular person or otherwise prohibiting further transfer or negotiation of the instrument is not effective to prevent further transfer or negotiation of the instrument.    An indorsement stating a condition to the right of the indorsee to receive payment does not affect the right of the indorsee to enforce the instrument. A person paying the instrument or taking it for value or collection may disregard the condition, and the rights and liabilities of that person are not affected by whether the condition has been fulfilled.    If an instrument bears an indorsement (i) described in section 4-4-201 (b), or (ii) in blank or to a particular bank using the words “for deposit,” “for collection,” or other words indicating a purpose of having the instrument collected by a bank for the indorser or for a particular account, the following rules apply:   A person, other than a bank, who purchases the instrument when so indorsed converts the instrument unless the amount paid for the instrument is received by the indorser or applied consistently with the indorsement.    A depositary bank that purchases the instrument or takes it for collection when so indorsed converts the instrument unless the amount paid by the bank with respect to the instrument is received by the indorser or applied consistently with the indorsement.    A payor bank that is also the depositary bank or that takes the instrument for immediate payment over the counter from a person other than a collecting bank converts the instrument unless the proceeds of the instrument are received by the indorser or applied consistently with the indorsement.    Except as otherwise provided in paragraph (3) of this subsection (c), a payor bank or intermediary bank may disregard the indorsement and is not liable if the proceeds of the instrument are not received by the indorser or applied consistently with the indorsement.       Except for an indorsement covered by subsection (c) of this section, if an instrument bears an indorsement using words to the effect that payment is to be made to the indorsee as agent, trustee, or other fiduciary for the benefit of the indorser or another person, the following rules apply:   Unless there is notice of breach of fiduciary duty as provided in section 4-3-307, a person who purchases the instrument from the indorsee or takes the instrument from the indorsee for collection or payment may pay the proceeds of payment or the value given for the instrument to the indorsee without regard to whether the indorsee violates a fiduciary duty to the indorser.    A subsequent transferee of the instrument or person who pays the instrument is neither given notice nor otherwise affected by the restriction in the indorsement unless the transferee or payor knows that the fiduciary dealt with the instrument or its proceeds in breach of fiduciary duty.       The presence on an instrument of an indorsement to which this section applies does not prevent a purchaser of the instrument from becoming a holder in due course of the instrument unless the purchaser is a converter under subsection (c) of this section or has notice or knowledge of breach of fiduciary duty as stated in subsection (d) of this section.    In an action to enforce the obligation of a party to pay the instrument, the obligor has a defense if payment would violate an indorsement to which this section applies and the payment is not permitted by this section.     History. Source: L. 94: Entire article R&RE, p. 852, § 1, effective January 1, 1995.    Editor's note:   This section is similar to former §§ 4-3-205 and 4-3-206 as they existed prior to 1994.   OFFICIAL COMMENT   1. This section replaces former Sections 3-205 and 3-206 and clarifies the law of restrictive indorsements.   2. Subsection (a) provides that an indorsement that purports to limit further transfer or negotiation is ineffective to prevent further transfer or negotiation. If a payee indorses “Pay A only,” A may negotiate the instrument to subsequent holders who may ignore the restriction on the indorsement. Subsection (b) provides that an indorsement that states a condition to the right of a holder to receive payment is ineffective to condition payment. Thus if a payee indorses “Pay A if A ships goods complying with our contract,” the right of A to enforce the instrument is not affected by the condition. In the case of a note, the obligation of the maker to pay A is not affected by the indorsement. In the case of a check, the drawee can pay A without regard to the condition, and if the check is dishonored the drawer is liable to pay A. If the check was negotiated by the payee to A in return for a promise to perform a contract and the promise was not kept, the payee would have a defense or counterclaim against A if the check were dishonored and A sued the payee as indorser, but the payee would have that defense or counterclaim whether or not the condition to the right of A was expressed in the indorsement. Former Section 3-206 treated a conditional indorsement like indorsements for deposit or collection. In revised Article 3, Section 3-206(b) rejects that approach and makes the conditional indorsement ineffective with respect to parties other than the indorser and indorsee. Since the indorsements referred to in subsections (a) and (b) are not effective as restrictive indorsements, they are no longer described as restrictive indorsements.   3. The great majority of restrictive indorsements are those that fall within subsection (c) which continues previous law. The depositary bank or the payor bank, if it takes the check for immediate payment over the counter, must act consistently with the indorsement, but an intermediary bank or payor bank that takes the check from a collecting bank is not affected by the indorsement. Any other person is also bound by the indorsement. For example, suppose a check is payable to X, who indorses in blank but writes above the signature the words “For deposit only.” The check is stolen and is cashed at a grocery store by the thief. The grocery store indorses the check and deposits it in Depositary Bank. The account of the grocery store is credited and the check is forwarded to Payor Bank which pays the check. Under subsection (c), the grocery store and Depositary Bank are converters of the check because X did not receive the amount paid for the check. Payor Bank and any intermediary bank in the collection process are not liable to X. This Article does not displace the law of waiver as it may apply to restrictive indorsements. The circumstances under which a restrictive indorsement may be waived by the person who made it is not determined by this Article.   4. Subsection (d) replaces subsection (4) of former Section 3-206. Suppose Payee indorses a check “Pay to T in trust for B.” T indorses in blank and delivers it to (a) Holder for value; (b) Depositary Bank for collection; or (c) Payor Bank for payment. In each case these takers can safely pay T so long as they have no notice under Section 3-307 of any breach of fiduciary duty that T may be committing. For example, under subsection (b) of Section 3-307 these takers have notice of a breach of trust if the check was taken in any transaction known by the taker to be for T's personal benefit. Subsequent transferees of the check from Holder or Depositary Bank are not affected by the restriction unless they have knowledge that T dealt with the check in breach of trust.   5. Subsection (f) allows a restrictive indorsement to be used as a defense by a person obliged to pay the instrument if that person would be liable for paying in violation of the indorsement.   ANNOTATION   I.GENERAL CONSIDERATION.   Annotator's note. The following annotations include cases decided under former provisions similar to this section.   Because of statute. Unrestricted indorsements cannot be varied either by parol evidence or evidence of custom in business for the reason that the statute definitely defines their meaning and controls their effect. Interstate Trust Co. v. United States Nat'l Bank, 67 Colo. 6 , 185 P. 260.   An unrestricted indorsement cannot be varied or changed by parol evidence. Shaw v. Brady, 80 Colo. 337 , 251 P. 532 (1926).   Or evidence of custom. Interstate Trust Co. v. United States Nat'l Bank, 67 Colo. 6 , 185 P. 260 (1919).   Latter special indorsement superseded restrictive indorsement. Where a depository bank specially indorsed a check to the plaintiff, who became a holder in his own right, payment by the maker to the plaintiff was not contrary to a restrictive indorsement “pay any bank”, because the latter special indorsement superseded the restrictive indorsement and such action by the depository bank was the equivalent of a constructive cancellation. Thus, any satisfaction to the ensuing holder was not inconsistent with the terms of the previous restrictive indorsement. Lamson v. Commercial Credit Corp., 187 Colo. 382 , 531 P.2d 966 (1975).   Addition by holder of the words “deposit only” to indorser's blank indorsement neither changed blank indorsement into a special indorsement, nor altered the effect of the blank indorsement, but was in fact a restrictive indorsement by holder which imposed a duty on depository bank to honor holder's restrictive indorsement. La Junta State Bank v. Travis, 727 P.2d 48 (Colo. 1986).   Indorsement directing payment “to any bank — previous indorsements guaranteed” considered not restrictive. Interstate Trust Co. v. United States Nat'l Bank, 67 Colo. 6 , 185 P. 260 (1919).   Addition by holder of the words “deposit only” to indorser's blank indorsement neither changed blank indorsement into a special indorsement, nor altered the effect of the blank indorsement, but was in fact a restrictive indorsement by holder which imposed a duty on depository bank to honor holder's restrictive indorsement. La Junta State Bank v. Travis, 727 P.2d 48 (Colo. 1986).   Indorsement “for deposit” was restrictive and imposed duty upon depository bank to not deposit funds in any account other than the indorser's account. Travis v. La Junta State Bank, 694 P.2d 350 (Colo. App. 1984).   This section defines a “trust” restrictive indorsement. Walter E. Heller Co. v. Mesa Bldg. Prods. Co., 233 F. Supp. 434 (D. Colo. 1964 ).   II.NEGOTIATION NOT PREVENTED.   Under N.I.L. legal title vested with a restrictive indorsement. Walter E. Heller Co. v. Mesa Bldg. Prods. Co., 233 F. Supp. 434 (D. Colo. 1964 ) (indorsee); Barnes v. Cherry Creek Nat'l Bank, 163 Colo. 414 , 431 P.2d 471 (1967) (indorser).   But under UCC negotiability is not destroyed by mere addition of a restrictive indorsement. La Junta State Bank v. Travis, 727 P.2d 48 (Colo. 1986).   Negotiability was destroyed. Barnes v. Cherry Creek Nat'l Bank, 163 Colo. 414 , 431 P.2d 471 (1967).   With bank receiving such in deposit becoming an agent for collection. Barnes v. Cherry Creek Nat'l Bank, 163 Colo. 414 , 431 P.2d 471 (1967).   Liable for paying impostor. Barnes v. Cherry Creek Nat'l Bank, 163 Colo. 414 , 431 P.2d 471 (1967).   III.INTERMEDIARY OR PAYOR BANK.   Subsection (2) under former law not in conflict with requirements of § 4-4-205 (2) under former law. The clear import of both subsection (2) and § 4-4-205 (2) is that, while intermediary banks and nondepository payor banks may ignore all restrictive indorsements except those of the bank's immediate transferor, depository banks may not so ignore restrictive indorsements. La Junta State Bank v. Travis, 727 P.2d 48 (Colo. 1986).