Thomas v. First National Bank

1. Fobseby. Elements of offence. Banks. Payment of draft on fraudulent endorsement. Liability of bank to owner. Where a bank check is payable to the order of a person and another person of the same name of the payee gets hold.of it and indorses it to a party who takes it in good faith and for value, such party acquires no title to the check. 2. Same. If the indorsement in such case is made by a person who is not the real payee, but has the same name as the real payee, is made by such person with full knowledge that he is not the real payee, and with intent.to perpetrate a fraud his indorsement is a forgery. 8. Same. Banks taking checks must know the true parties claiming to own them — in fact who do own them, and they act at their peril in paying them.

Appeal from the circuit court of Harrison county. Hon. T. H. Barrett, Judge. Suit by J. S. Thomas against the First National Bank of Gulfport. From a judgment for defendant* plaintiff appeals. AGREED STATEMENT OK PACTS. “It is agreed by and between tbe parties hereto: That on and previous to the 23d day of October, 1909, the plaintiff, who is a white man and a citizen of said Harrison county, and whose business was that of riding about buying cattle, had on deposit in the First National Bank of De Funiak Springs, Fla., a balance of account of two hundred and eleven dollars, and that the plaintiff (who was then, and for some time had been, living, and is now living, at a point between Gulfport and Lyman, in said Harrison county, but nearest to Lyman, the two points Gulfport and Lyman being eight miles apart) wrote a letter to the said bank at De Funiak Springs, requesting said bank to send said sum of two hundred and eleven dollars to him at Gulfport, by letter, care general delivery, Gulfport, Miss., and in accordance with said instructions of plaintiff', said bank at De Funiak Springs made out its draft No. 12699 for said sum of two hundred and eleven dollars on the National City Bank of New York, payable to the order of J. S. Thomas, intending the plaintiff, and immediately mailed same in the United States postoffice at De Funiak Springs, Fla., addressed as follows: ‘J. S. Thomas, Gulfport, Miss.’ The plaintiff had theretofore been writing some of his letters from Lyman, Miss., and some from Gulfport, and had been getting his mail, some at Lyman and some at Gulfport. However, the letter written by plaintiff to the said bank at De Funiak Springs was written by plaintiff from said Gulfport. There lived, and had for some years lived, in Gulfport a certain negro named J. S. Thomas, who can and could read and write, and who had a bank account at the First National Bank of Gulfport, the defendant herein (an itemized statement of whose entire deposits in defendant’s bank to the date hereof is attached hereto as ‘Exhibit O’), and who received his mail at said Gulfport. The authorized signature of' said negro was filed by him with the defendant bank on February 4, 1907, where it still remains. When, by due course of mail, the letter from said Florida bank, containing said draft, reached the United States' post-office at Gulfport, about October 25, 1909, the said negro, J. S. Thomas, was the first ¡of said two persons of said name to call at the general delivery for the mail of J. S. Thomas, and the postal -authorities in charge delivered the said letter to him. The said negro opened said letter, and coming into possession of said draft, took it on, to wit, October 26, 1909, during regular banking hours, to defendant’s bank, indorsed same, “J. S. Thomas,” in his own proper signature and handwriting, falsely representing it to be his own, and that he was the true J. S. Thomas mentioned - as payee therein, by so indorsing and presenting said draft, and requested defendant bank to cash the same. The said negro was known to the officer of said defendant bank who was acting, as paying teller at the time, but was not the regular teller, as J. S. Thomas, a depositor thereof, and the said officer of said defendant bank having compared the indorsement “J. S. Thomas ’ ’ on the back of said draft with the signature of said negro, J. S.. Thomas, on file, as aforesaid, and finding them to correspond, but without further inquiry, thereupon paid the amount called for by said draft, to wit, two hundred and eleven dollars in cash, to said negro, J. S. Thomas, but said paying officer of defendant took no other means- to ascertain the identity of said payee, J. S. Thomas, in the draft, merely paying said money upon its presentation and comparison of signature, as aforesaid. The original of said draft is herewith annexed, marked ‘Exhibit A,’ and made a part of this agreed- statement of facts. “The said defendant bank, at the close of its business on said October 26, 1909, in making up its items of paper to be forwarded to New York for payment, discovered that the said draft, Exhibit A, was erroneously safeguarded, as now appears on its face, in this, to wit, that, while said draft was intended to be for the sum of two hundred and eleven dollars, it was stamped with a machine called a protectograph, which had been caused by said De Funiak Springs bank to be erroneously stamped thereon, ‘Not over five dollars, $5.00/ and thereupon, on said date, said defendant bank sent the said draft by mail to said De Funiak Springs bank, calling its attention to said error, and requesting said Florida bank to send another draft in its place and stead properly safeguarded, which letter reached said Florida bank on the next day, October 27, 1909, and said Florida bank on the same day took up and retained the said first draft, Exhibit A, and on the same day, in its place and stead and in lieu thereof, mailed to defendant bank a new draft, No. 12716, for two hundred and eleven dollars payable to said defendant bank, which is herewith annexed as ‘Exhibit B/ and made a part of this agreed statement of facts, which- said last draft, was duly received by said defendant bank and by it at once forwarded to New York, where it was paid in full to defendant bank out of the funds of the said First National Bank of De Funiak Springs, Fla., by and in the said National City Bank of New York, as is the banking custom in such cases. The amount was charged by the said Florida bank against the account of plaintiff and balanced same. That the receipt and opening said letter containing said draft, and cashing of-the same at the defendant bank, and the indorsement and presentation of -the same by said negro, J. S. Thomas, were all and singular without the information, knowledge, or consent of the plaintiff, J. S. Thomas, and-that upon learning from said Florida bank, upon inquiry, that the said sum of money, to wit, two hundred- and eleven dollars, the proceeds of said draft, had been paid to -the defendant bank, he went on, to wit, November 5, 1909, to said defendant bank and claimed said draft and proceeds thereof, and demanded payment of the same by the defendant to the plaintiff, as the true owner of said draft, and then and there notified said defendant bank that said indorsement was a forgery, and that he had not indorsed the same. The defendant bank refused to pay said sum of two hundred and eleven dollars, or any part thereof, to the plaintiff, and still refuses, though often requested. Upon said demands being made, said defendant bank notified the United States postal authorities and the police authorities of the said city and endeavored to have said negro, J. S. Thomas, arrested, and requested plaintiff to have him arrested, or ascertain his whereabouts, for such fraudulent conduct and acts; but said negro was not found after search by all said parties, and it is believed by the parties that he left said community after having received said money on said draft as aforesaid. “The plaintiff, J. S. Thomas, had also formerly been a depositor at the said defendant bank, but closed his account there September 14, 1908, and has done no business with said bank since said date. On the books of said defendant bank the address of said plaintiff, J. S'. Thomas, is Lyman, Miss., and said defendant bank, while it was doing business with said plaintiff, sent his statements and other communications to him at Lyman. The said sum of two hundred and eleven dollars, or any part of it, was never placed to the credit of said plaintiff, and he has never received said money or any part thereof, from any source. The said plaintiff knew, when he wrote to the said Florida bank, that one (another) J. S. Thomas had been a depositor and customer of said defendant bank, but did not know him, and had never seen him, but did know that such a person did live, or at least had lived, in Gulfport. That all the indorsements upon said draft, Exhibit A hereto, are how as each originally was after being returned to said Florida bank, but the statement of £J. S. Thomas’ on the back thereof is not the signature of the plaintiff, that is to say, not his handwriting, nor was it written there with the knowledge or consent of the plaintiff. The words ‘Paid Oct. 27, with our draft No. 12716 favor of First National Bank, Gulfport, Miss.,’ were written on the back of Exhibit A by the DeFnniak Springs bank upon issuing Exhibit B hereto. That the negro, J. S. Thomas, who unlawfully took said draft, Exhibit A, as aforesaid, never had any deposit or balance with the said De Fnniak Springs bank, and the said draft was not intended for him, but for the plaintiff; but -said defendant bank knew nothing of either of said parties named J. S. Thomas having or not having any deposit in said Florida bank, nor which of said parties it was intended to have said draft, and was wholly without knowledge in that regard, but defendant bank did know that the plaintiff had been a depositor in defendant bank, and that his signature was there on file. It is further agreed that said cause may be heard without further pleadings before the judge of the circuit court aforesaid, without a jury, and before the supreme court if an appeal is taken, upon the above statement of facts (and the law applicable thereto), which are all the facts in the case.” Under the facts in this case, as shown in the pleadings and agreed statement of facts, and under our statute abolishing forms of actions, the distinction between conversion and assumpsit for money had and received is immaterial; the declaration shows a good cause of action and that is all that is necessary, as this court has held so often that it is deemed unnecessary to cite the decisions to that effect. A draft was stolen from the mail, payable to plaintiff’s order; and the thief, having placed a forged endorsement upon it, sold it to one McKee, who in good faith collected from the drawer the money, and appropriated it to his own use; upon these facts it was held that the owner was entitled to recover front McKee. , Shaffer v. McKee, 19 Ohio, 526. Where a check is not delivered to the payee, but his name is indorsed by another, who deposits it with a different bank than the one upon which it is drawn, which collects the proceeds, which bank is liable to the true owner (the payee) though it acts in good faith and without knowledge of the forgery; and a demand upon such bank for the proceeds, before suit or. by the suit itself, made the check the property of the payee, and recovery could not be defeated on the ground of want of privity. Farmer v. People’s Bank (Tenn.), 47 S. W. 234. If a negotiable instrument, having a forged indorsement, comes into the hands of .a bank, and is collected by it, the proceeds are held for the rightful owner of the paper, and may be recovered by him, although the bank gave value for the paper, or has paid over the proceeds to the party depositing the instrument for collection. 1 Morse on Banks and Banking, Sec. 248. It is held to be the well-settled rule, “A check drawn in favor of a particular payee or order is payable only to the actual payee or upon his genuine indorsement; and if the bank mistake the identity of the payee, or pay upon a forged indorsement, it is not a payment in pursuance of authority, and it will be responsible.” Pickle v. Muse, 88 Tenn. 381, 12 S. W. 919. To the same effect is Chism v. Bank, 96 Tenn. 641, 36 S. W. 387. “The logic of this holding,” said the court of Tennessee in the case of Farmer v. People’s Bank, supra, “it would seem, must pecessarily be that one coming into the possession of such paper, either unindorsed or with a forged indorsement of the payee’s name, could not successfully resist the title of the true owner, or, if it had been converted into money, a demand for its proceeds.” Where a certificate of deposit belonging to one Talbot was stolen, and by a forged indorsement came into possession of the defendant bank, which subsequently collected it from the drawee, at the suit of the owner, the receiving bank was held liable for the proceeds of the certificate, though it acted in the utmost good faith and without any suspicion of the fraud practiced upon the true owner. Talbot v. Bank, 1 Hill. 295. A check with the name of the payee forged upon it came to the possession of the defendant innocently, and was so collected by it; having done, so, it was compelled to respond to the claim of the true owner, upon his discovery of the loss and fraud, though the bank had already accounted for the proceeds to the party from whom it had obtained possession. The court said: “It is clear, then, that nothing passed to the defendant by virtue of the forged indorsement. The plaintiff’s right to the check remained precisely as it was before his name was forged. The check, therefore, when the defendant obtained the money upon it, was the property of the plaintiff; and in that case he may, as we have seen, recover the amount in this action, as money had and received by the defendant to his use.” Buckley v. Bank, 35 N. J. L. 400. While such an action would be for money had and received, it is- held in Salomon v. Bank, 59 N. T. Supp. 407, that action for conversion would lie for the amount. The case of Farmer v. People’s Bank, supra, reviewing the authorities, and coming to the conclusion we have cited, stated that Johnson v. Bank, 6 Hun, 124, and Bobbett v. Pinkett, 1 Exch. Div. 368, are to the same effect. These two authorities are not accessible to me. Hpon the objection that the action could not be maintained for want of privity, the court in Farmer v. People’s Bank, supra (47 S. W. 234), says: .“Although not actually delivered to plaintiff, yet his ratification by a demand upon the defendant for its proceeds, by this suit, if not before, made the check the property .of Farmer, so that when, without any lawful right, the defendant converted it into money, it stood in the place of the original paper, and was equally the property of the plaintiff in error. In the one case no more than in the other, can the defendant in error resist the right of recovery of the true owner upon the ground of a want of privity; for the action against the wrongdoer does not rest upon privity; hut upon the fact that he has inter-meddled with property not his own, and, asserting’ a hostile claim, he has interfered with the lawful use and dominion of the owner of the property.” Negotiable bonds, payable to order, and bearing the indorsement in blank of the payee, were lost or stolen. The finder or thief erased the indorsements, and offered them for sale to the defendant, representing himself to be the person named in them as payee, and was identified as such by a person known to the defendant. The defendant agreeing to purchase, the officer indorsed the bonds with the name of the payee, and received for them their market value. The erasure of the indorsements was so made as not readily to attract attention, and the defendant purchased in good faith and in the regular course of business, and it was held that defendant acquired no title against the owner, who recovered them. Colson v. Arnot, 15 Am. Bep. 496, 57 N. Y. 253. "Where a bill is payable to the order of a person, and another of the same name obtains possession of it and indorses it to a third person in good faith and for value, the latter acquires no title; and where there are two persons of the same name, and one of them signs that name to certain notes with the intention that they shall be used in trade as the notes of the other, is forgery. Beattie v. Bcmk, 174 111. 571, 66 Am. St. 318. In the last named case, the draft sued upon, though intended to be made payable to George P. Bent, was by mistake made payable to the order of George A. Bent, and was then mailed to George A. Bent, Chicago, Illinois. It was there received from the postoffice by a man named George A. Bent, who indorsed upon, it his own name and sold it to the plaintiff, who was a purchaser in good faith. Payment of/the draft was refused on the ground that it was a forgery. The trial court sustained this view, and entered judgment for the defendant, which was affirmed. It will he seen that the last cited ease is different from the one at bar in that the drawee refused to pay, and the purchaser of the forged draft brought suit; in the instant case, the First National Bank of Gulfport, appellee here, indorsed the draft after the forged indorsement, thereby contracting that it was not forged (1 Daniel Neg. Inst., 4 Ed., 672) and the drawer bank of Florida paid it by the second draft; and while this case might be clear authority for the Florida bank against the appellee here, and for the appellant here if he had sued the Florida bank, yet this not a question of what other suits might have been brought by the appellant or appellee or the Florida bank; the Beattie case sustains the principles that we have asserted here, and contains a full discussion of the cases on forgery of negotiable paper by forged indorsement of the payee’s name by another of the same name who had improperly come into possession of it, all of which clearly hold that the purchaser from such person acquires no title to the instrument, as we have contended. It is shown that the appellant made a demand upon the appellee, both in person and by bringing his suit,, thus ratifying the collection of the drafts, and by the authorities first cited to that proposition, the appellee thereby became liable to the appellant for the proceeds of the draft, to wit, the two hundred and eleven dollars which it had collected from the Florida bank. As a further ground of sustaining the suit ag’ainst the appellee, it seems clear that if appellee has collected money from the drawee of the draft, which the drawer could have refused payment of on the ground of the forgery by the negro Thomas (as was done in the Beattie case in 66 Am. St., supra), why should the appellant he remitted to a suit against the Florida bank, in another jurisdiction, instead of against the appellee bank in his own jurisdiction which holds money it collected by appellant’s draft (becoming his by the demand therefor on appellee), and to which it has no right under any theory of law or equity? If the appellee should be compelled to pay the money to appellant, it would be in no worse position than it was after paying that sum over to the forger, the negro Thomas, and it is certainly not entitled to remain in a better position, at least so far as the appellant is concerned. Had the appellant sued the Florida bank, that bank could have notified the appellee to defend'— “vouched it to defend” — and upon its failure to do so, and a judgment had been rendered against the Florida bank in favor of appellant, the Florida bank could have sued the appellee here and obtained judgment, as held in Bank v. Bank, 94 Am. St. 637, 182 Mass. 230, 65 N. E. 24; the facts in that case are substantially like the case at bar, both on law and facts. The appellee made and now makes several defenses to the demand and action, which, ought to protect it in this matter, and on the first of which we can do no better than to quote and adopt the language of one of the greatest, if not the very greatest, authorities on the subject. Morse on Banking, pp. 851-853: “The case of Graves v. Bank certainly carries the liability of the bank to an extreme, and it may be an excessive point. The rule is there laid down, that if a check be made payable to a person, and another person of precisely the same name, or initials, so far as these are written out in the check, comes wrongfully or accidentally into possession of same, indorses it, and obtains the money on it from the bank, still the bank is liable to make good the amount to the drawer. The logical sequence which leads to this goal is clear enough. The drawer has ordered payment to be made to the order of one person, and it has been made to the order of another; consequently, payment has not been made according to the drawer’s direction, and the bank is not discharged fro tanto. The indorsement is a forgery. This is plain reasoning. Yet it would seem that the bank ought to.be protected in such a case. A reasonable limit should be set to its liability. It cannot be supposed to have such cognizance of the private affairs of each depositor as to know in favor of what individuals he is going to draw his several checks. This is clearly impossible. The depositor orders payment to be made to one A. B. An A. B. presents the order and endorses it; the bank knows him to be A. B., or obliges him to prove himself A. B., and then pays him. Without the gift of divination, what more can they do? They have used all the means of identification which the drawer has placed at their disposal, and if these have only led them into error, it is certainly rather his fault than theirs. He gives them nothing but a name to guide them in selecting the payee from the various members of the community; they do all that can be done with this sole means of distinction. If the name is not enough, but should have been supplemented with descriptive language, setting forth the true payee’s profession, abode, place of business, etc., the drawer should have known this necessity and provided for it. If he depends upon the name alone, should he not be held to take the risk of its sufficiency as a sole means of identification? He had some degree of personal knowledge of the payee, and the bank very probably had not one particle. It does its best with the light it has. The drawer has not done his best by the light he had. Clearly justice demands that the drawer should suffer in case of error induced by such a state of affairs. But though the propriety of the ruling may be criticised, it must be admitted that it lays down the only adjudicated law in the premises, except a remark made in an old case in New Hampshire. The only English authority is to the same effect. It is to be found in' the case of Mead v. Young, which was cited as an authority in Graves v. Am. Bank, and which appears fully to support that decision. It may be worth noticing, that in the American case Judge Roosevelt dissented. The technical rule of law declaring the indorsement a forgery is too strong for the principles of justice. A pension, agent sent a check addressed to H. and payable to him, but to the wrong postoffice, whereby another person of the same name received the check, forged the indorsement, and got the money. H. recovered of the bank; it had accepted the check, and from that moment held the money for the true payee. Where a bank pays to another whose name is pronounced like that of the payee, but differently spelled, whether it was negligent is a question of fact on all the circumstances. This is the true question. It will not do to say the bank has not paid to the person to whom the drawer ordered payment, therefore it is liable'; the question is, whose fault is it that a mistake has been made? The bank is only bound to the exercise of ordinary care in obeying the drawer’s instructions; if it does this and loss follows, the depositor must bear it, just as if he had been doing the work himself.”