We granted the applications for certiorari of three of the parties to Refrigeration Supplies, Inc. v. Bartley, 144 Ga. App. 141 (240 SE2d 566) (1977). The primary issues in the case concern the respective liabilities of a collecting (or cashing) bank and a drawee (or payor) bank to the joint payee of a check which was cashed without the payee’s endorsement. Relying upon its earlier decision in Ins. Co. of N. A. v. Atlas Supply Co., 121 Ga. App. 1 (4) (172 SE2d 632) (1970), the Court of Appeals held that the banks were liable. The order of the trial court was reversed insofar as *407it granted the defendant banks’ motions for summary judgment. However, the Court of Appeals affirmed the trial court’s denial of the plaintiffs motion for summary judgment, holding that there remained questions of fact with reference to the amount of damages.
The facts of this case are remarkably similar to the facts of Ins. Co. of N. A. v. Atlas Supply Co., supra. There, pursuant to an agreement of the parties, a general contractor issued checks jointly payable to the subcontractor and materialman. The checks were cashed by the subcontractor without the materialman’s endorsement. The bank cashing the checks, the collecting bank, was held liable to respond in damages to the materialman.
In the present case, the general contractor, who was also the owner of the property (an apartment complex), issued checks jointly payable to the subcontractor and materialman. However, there was no understanding or agreement of the parties that the property owner-general contractor would pay the materialman. Had there been an understanding or agreement, the consideration flowing to the property owner-general contractor would have been found, among other things, in the materialman’s forbearance from filing a lien on the property. In the absence of such an agreement, it would appear that the property owner-general contractor, not being in privity of contract with the materialman, would not be personally liable to him. Robertson v. Laughlin Insulation Co., 134 Ga. App. 509 (215 SE2d 274) (1975). Therefore, under the facts present here, the property owner-general contractor was under no legal obligation to include the materialman as a payee on the checks; therefore, his payment of the materialman was, in a strict legal sense, a gratuitous payment. Since the checks on which suit is being brought would be unenforceable by the payee against the maker, are those checks likewise unenforceable by the payee against the banks paying the checks without the payee’s endorsement? This is the question on which we granted certiorari. Having determined that the banks are liable to the nonsigning payee for accepting and paying the checks without the payee’s endorsement, we answer the question in the negative.
*408In Division 4 of Ins. Co. of N. A. v. Atlas Supply Co., supra, the Court of Appeals noted that the precise question of the collecting bank’s liability to a nonendorsing payee was a novel one in Georgia. In holding the bank liable, the Court of Appeals relied upon the decision of the Appellate Court of Illinois in U. S. Fidelity &c. Co. v. Peoples Nat. Bank, 24 Ill. App. 2d 275 (164 NE2d 497) and the decision of the Supreme Court of Utah in Pacific Metals Co. v. Tracy-Collins Bank &c. Co., 21 Utah 2d 400 (446 P2d 303). In Pacific Metals Co. v. Tracy-Collins Bank &c. Co., supra, the drawee bank sought to avoid liability to the nonendorsing joint payee, a materialman, by arguing that the drawer, a general contractor, had included the nonendorsing payee as a joint payee on the check as an act of courtesy for which the drawer received no consideration. The Supreme Court of Utah concluded that this argument was without merit, holding that a joint payee suing a bank for cashing a check without its endorsement need not show that it gave consideration for issuance of the check. "[I]t is the maker’s exclusive privilege to designate the payees of his checks; and it is not the prerogative of one who accepts and pays it to question whether the maker had sufficient reason for doing so. However, in accepting the check, it is his duty to comply with the direction of maker to 'pay the order of’ the named payees. It is elementary negotiable instruments law that in order to fulfill that requirement all payees must endorse.” 21 Utah 2d 402, 403. We agree. Under Code Ann. § 109A-3 — 116, unless a check payable to the order of two or more payees is payable to those payees in the alternative, a bank is not authorized in accepting and paying it except upon the endorsement of all the payees.
Payment of the check without the endorsement of a joint payee is an exercise of dominion and control over the check inconsistent with the nonsigning payee’s rights amounting to a conversion. F. D. I. C. v. Marine Nat. Bank of Jacksonville, 431 F2d 341 (3-6) (5th Cir. 1970). The situation is analogous to payment of the check on a forged endorsement, which Code Ann. § 109A-3—419 (1) (c) acknowledges to be a conversion. U. S. Fidelity &c. Co. v. Peoples Nat. Bank, supra. We recognize the rule that an action for conversion can be brought only by one who has *409title, possession, or a right to possession of the property. Southern Exp. Co. v. Sinclair, 130 Ga. 372 (60 SE 849) (1908); McElroy v. Williams Bros. Motors, 104 Ga. App. 435 (121 SE2d 917) (1961). We hold that inclusion of the party as a joint payee on the check gives him a right to possession of the check.
In arriving at this decision, we have not overlooked Code Ann. § 109A-4 — 407(c): "If a payor bank has paid an item over the stop payment order of the drawer or maker or otherwise under circumstances giving a basis for objection by the drawer or maker, to prevent unjust enrichment and only to the extent necessary to prevent loss to the bank by reason of its payment of the item, the payor bank shall be subrogated to the rights ... (c) of the drawer or maker against the payee or any other holder of the item with respect to the transaction out of which the item arose. (Acts 1962, pp. 156, 306.)” Although we have found no Georgia cases construing this Code section, it appears to us that its intent is to allow the payor bank to be subrogated to the rights of the drawer in a suit by the payor bank against the payee or other holder of the item. We do not believe the subrogation rights which this Code section grants to the payor bank can be used to defeat the plaintiffs claim in this case where the drawer of the checks did not issue a stop payment order, where the only basis for objection to the bank’s payment of the items by the drawer is that the endorsements of the materialman were not obtained, and where no unjust enrichment will result, since the materialman will recover no more than the actual damages sustained.
We conclude that the Court of Appeals was correct in holding both the collecting and drawee banks liable to the plaintiff as a matter of law.1 We also agree that there *410remain in the case factual questions with reference to the amount of damages and that the plaintiffs motion for summary judgment was properly denied for this reason. However, we find it necessary to vacate the judgment of the Court of Appeals and remand the case to the Court of Appeals for consideration of the statute of limitation defenses raised by both the collecting and drawee banks in their answers to the plaintiffs complaint, which were not expressly ruled on by the trial court (although the trial court did grant the banks’ motions for summary judgment), and which were asserted by the banks before the Court of Appeals as reasons for affirming the trial court.
Argued March 13, 1978 Decided May 17, 1978 Rehearing denied June 9, 1978. Thompson & Redmond, Lee R. Redmond, Jr., for appellant (Case no. 33295). Jerry A. Buchanan, for appellees (Case no. 33295). Hatcher, Stubbs, Land, Hollis & Rothschild, Jerry A. Buchanan, Gary L. Coulter, for appellant (Case no. 33296) . Thompson & Redmond, Lee R. Redmond, Jr., for appellees (Case no. 33296). Willis & Carter, Grover C. Willis, Jr., for appellant (Case no. 33297). Marcus B. Calhoun, Jr., for appellee (Case no. 33297) .Judgment vacated and remanded with direction.
All the Justices concur, except Jordan, Hall and Bowles, JJ., who dissent.Code Ann. § 109A-4 — 207 (1) (a) provides that, "Each customer or collecting bank who obtains payment or acceptance of an item and each prior customer and collecting bank warrants to the payor bank or other payor who in good faith pays or accepts the item that he has a good title to the item or is authorized to obtain payment or acceptance on behalf of one who has a good title. . .” Although the question is not raised in this appeal, it *410would appear that since the drawee bank is liable to the nonsigning payee, the collecting bank would, in turn, be liable to the drawee bank for breach of this statutory warranty.