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It is no defense that the defendant ordinary care was not used to discover bank or other corporation, or person, and prevent the fraud of the person acted in good faith in the matter. who committed the forgery, there is ALLEN V. M. MENDELSOHN & SON (re- no authority for holding that such ported herewith) ante, 1063; Schaap v. negligence can work an estoppel. First Nat. Bank (1918) 137 Ark. 252, The fact that the payee allowed 208 S. W. 309; Meyer v. Rosenheim more than two years to elapse after (1903) 115 Ky. 409, 73 S. W. 1129; learning of the unauthorized indorsePeople v. Bank of North America ment by an agent, before giving any (1879) 75 N. Y. 547; E. Moch Co. v. notice to the person who cashed the Security Bank (1917) 176 App. Div. check for the agent, does not preclude 842, 163 N. Y. Supp. 277, affirmed with- his action against such person, whose out opinion in (1919) 225 N. Y. 723, position was not in any way changed 122 N. E. 879. Some importance is by the failure of the payee to give the attached in Buena Vista Oil Co. v. notice earlier. A. Blum Jr's. Sons v. Park Bank (1919) 39 Cal. App. 710, Whipple (1907) 194 Mass. 253, 13 180 Pac. 12, the facts of which are set L.R.A.(N.S.) 211, 120 Am. St. Rep. out infra, to the fact that the defend- 553, 80 N. E. 501. ant bank had had no previous dealings The payee was held precluded by with the corporation, and refrained circumstances resulting in an estoppel, from making inquiry as to the au- from recovering against the bank thority of the officer depositing the which had cashed the check, in Brown check. The court in Meyer v. Rosen- v. People's Nat. Bank (1912) 170 Mich. heim (1903) 115 Ky. 409, 73 S. W. 1129, 416, 40 L.R.A.(N.S.) 657, 136 N. W. says that the question in that case was 506. on which of two equally innocent per- No tender of the forged check is sons a loss should fall.

necessary to the payee's right of acRecovery has been allowed although

tion and recovery. Lindenthal V. the plaintiff has been guilty of negli- Northwest State Bank (1921) 221 Ill. gence. In Hamlin's Wizard Oil Co. v. App. 145. In Johnson V. First Nat. United States Exp. Co. (1914) 265 Ill. Bank (1875) 6 Hun (N. Y.) 124, af156, 106 N. E. 623, 7 N. C. C. A. 638, firmed without opinion in (1877) 68 where the forgery was the act of an N. Y. 616, a recovery was allowed for employee of the plaintiff, it was held the amount of all of the checks which that the negligence of the plaintiff in had been cashed by the defendant the management of its affairs was no bank, although the plaintiff was undefense, since it owed the defendant able to produce a part of them because no legal duty to protect it against its of the disposition which the defendant own act in accepting negotiable pa- bank had wrongfully made of them. pers on the forged indorsement of the owner. In Schmidt v. Garfield Nat.

b. Theory. Bank (1892) 64 Hun, 298, 19 N. Y. The theory of the rule set out in Supp. 252, affirmed without opinion in II. a, supra, has been expressed in (1893) 138 N. Y. 631, 33 N. E. 1084, different ways, all of which may be the court, in allowing a recovery al- summed up in the statement that the though the plaintiff may have been possession of the check on the forged negligent, says it is not a general rule or unauthorized indorsement is wrongof law that a person can be deprived ful, and when the money had been of his property by an unauthorized collected on the check the bank, or transfer thereof, simply because he other person or corporation, can be has not exercised ordinary care to pre- held as for moneys had and received. vent such transfer; that estoppel by ALLEN V. M. MENDELSOHN & SON (renegligence arises where the negligence ported herewith) ante, 1063; Schaap consists in permitting another per- v. First Nat. Bank (1918) 137 Ark. son to clothe himself, or to be clothed, 252, 208 S. W. 309; United States Portwith apparent authority to act; that, land Cement Co. v. United States Nat. where the negligence is simply that Bank (1916) 61 Colo. 334, L,R.A.

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1917A, 145, 157 Pac. 202; Independent 400, 10 Am. Rep. 249; Farmer v. Oil Men's Asso. v. Ft. Dearborn Nat. People's Bank (1897) 100 Tenn. 187, Bank (1924) 311 Ill. 278, 142 N. E. 47 S. W. 234. 458; Buckley v. Second Nat. Bank . This recovery may be in assumpsit. (1872) 35 N. J. L. 400, 10 Am. Rep. 249; ALLEN V. M. MENDELSOHN & SON (reTalbot v. Bank of Rochester (1841) 1 ported herewith) ante, 1063. IndeHill (N. Y.) 295; Johnson v. First Nat. pendent Oil Men's Asso. v. Ft. DearBank (1875) 6 Hun (N. Y.) 124, af- born Nat. Bank (1924) 311 Ill. 278, firmed without opinion in (1877) 68 N. 142 N. E. 458. Y. 616; E. Moch Co. v. Security Bank Recovery may be had in trover. A. (1917) 176 App. Div. 842, 163 N. Y. Blum Jr.'s Sons v. Whipple (1907) 194 Supp. 277, affirmed without opinion in Mass. 253, 13 L.R.A.(N.S.) 211, 120 (1919) 225 N. Y. 723, 122 N. E. 879; Am. St. Rep. 553, 80 N. E. 501; Crisp Salomon v. State Bank (1899) 28 v. State Bank (1915) 32 N. D. 263, 155 Misc. 324, 59 N. Y. Supp. 407; Graton N. W. 78. & K. Mfg. Co. v. Redelsheimer (1902) The owner of the check may ratify 28 Wash. 370, 68 Pac. 879; Arnold v. the collection from the drawee bank Cheque Bank (1876) L. R. 1 C. P. Div. without ratifying the forged or unau(Eng.) 578, 45 L. J. C. P. N. S. 562, 34 thorized indorsement. ALLEN V. M. L. T. N. S. 729, 24 Week. Rep. 759. MENDELSOHN & SON (reported here

The position of the bank or oth- with) ante, 1063; Schaap v. First Nat. er corporation, or person, taking the Bank (1918) 137 Ark. 252, 208 check on the forged or unauthorized S. W. 309; United States Portland indorsement, is the same as if he had Cement Co. v. United States Nat. Bank taken the check and collected the (1916) 61 Colo. 334, L.R.A.1917A, 145, money without any indorsement at

157 Pac. 202. Independent Oil Men's all. Meyer v. Rosenheim (1903) 115 Asso. Ft. Dearborn Nat. Bank Ky. 409, 73 S. W. 1129; Thomas v. First (1924) 311 Ill. 278, 142 N. E. 458. Nat. Bank (1911) 101 Miss. 500, 39 The payee to whom a check has been L.R.A.(N.S.) 355, 58 So. 478.

mailed, but which has been intercepted The act of the bank amounts to a and cashed with a fraudulent indorseconversion of the check. Higgin Mfg. ment thereon by a third party, may Co. v. Foreman Bros. Bkg. Co. (1921) ratify the delivery without ratifying 222 Ill. App. 29; Meyer v. Rosenheim the forged indorsement. Crisp v. State (1903) 115 Ky. 409, 73 S. W. 1129; Bank (N. D.) supra. Kansas City Casualty Co. v. Westport It is held that the right of the payee Ave. Bank (1915) 191 Mo. App. 287, or other holder to recover of the col177 S. W. 1092; Talbot v. Bank of lecting bank, or other person or corRochester (1841) 1 Hill (N. Y.) 295; poration, is not governed by the People v. Bank of North America principles which govern the right of (1879) 75 N. Y. 547; Robinson v. the payee or other holder to recover of Chemical Nat. Bank (1881) 86 N. Y. the drawee bank. Schaap v. First Nat. 404; Johnson v. First Nat. Bank Bank (1918) 137 Ark. 252, 208 S. W. (1875) 66 Hun (N. Y.) 124, affirmed 309; United States Portland Cement without opinion in (1877) 68 N. Y. Co. v. United States Nat. Bank (Colo.) 616; E. Moch Co. v. Security Bank supra. (1917) 176 App. Div. 842, 163 N. Y. Compare Chicago, B. &. Q. R. Co. v. Supp. 277, affirmed without opinion in Burns (1901) 61 Neb. 793, 86 N. W. (1919) 225 N. Y. 723, 122 N. E. 879; 493, supra, II. a. Salomon v. State Bank (1899) 28 Misc. 324, 59 N. Y. Supp. 407; Graton & K.

c. As affected by question of delivery to Mfg. Co. v. Redelsheimer (1902) 28

payee. Wash. 370, 68 Pac. 879; Arnold v.

In the great majority of the aboveCheque Bank (Eng.) supra.

cited cases the check did not reach Lack of privity between the parties the hands of the payee. The bearing does not defeat the action. Buckley v. of such absence of delivery is conSecond Nat. Bank (1872) 35 N. J. L. sidered in some cases, and held not to be material. ALLEN V. M. MENDEL- it had, in fact, been paid. As its inSOHN & SON (reported herewith) dorsement was unauthorized, its purante, 1063.

chase and payment in no manner The test, according to Indiana Nat. affected the plaintiff's rights, and, Bank v. Holtsclaw (1884) 98 Ind. 85, therefore, did not preclude its acceptis whether title vested. In this case ance.” the check in question had been mailed Nor does the fact that the payee had to the payee, but a mistake had been begun an action against the drawer of made in his address, and the letter the check, which could only be maincontaining the check was delivered to tained on the assumption that the title another person of the same name at to the check had not vested in the the wrong address, indorsed with payee, affect the rights of the payee, plaintiff's name upon it, and trans- where such suit did not constitute an ferred to the defendant bank. In hold- irrevocable election and subsequently ing that the title vested in the payee, the payee amended his complaint the court says: "Ordinarily, when one against the bank so as to proceed person directs another to send him by against it upon the assumption that mail a check for money, and the the title had vested. Indiana Nat. same is inclosed in a letter properly Bank v. Holtsclaw (Ind.) supra. directed and deposited in the post- It was insisted in Crisp v. State office, such check at once becomes the Bank (1915) 32 N. D. 263, 155 N. W. property of the former, and is there- 78, that, the check not having been in after at his risk. This the appellant the possession of the payee before the concedes, but insists that as a mistake time of the alleged conversion, an ac. was made in the address in this case, tion of trover would not lie; that, no the title did not vest. This by no delivery having been made, the means follows. The title vested upon check at such time was the property the acceptance of the check. If de- of the maker, and not of the payee, and posited as directed, the acceptance was the payee, therefore, had no ground then made and the title vested; if not of complaint, as the liability of such deposited as directed, still the check, maker to her was still existing, the notwithstanding such misdirection, debt never having been paid. The might be accepted, and, when accepted, court answered this argument, howthe title vested. The mere fact, there- ever, by saying that the objection fore, that the letter was misdirected, came too late; that the case had been does not show that the title to the twice tried, and the point did not apcheck did not vest in the plaintiff. It pear to have been raised until the is insisted that as the (payee] did not

motion for a new trial was made in the know that such check had been issued

second action. It is further stated and mailed to him until after the that the delivery of the check to the [bank] had purchased and received plaintiff or her agent, and her right the money upon it, he could not there- to the possession thereof at the time after waive the mistake made in ad- of its payment by the defendant bank, dressing the letter, and accept the were admitted by the answer, and check.” This contention was answered therefore the question of ownership in the negative by the court, by say

of the check and the right to possesing: "The appellant had acquired sion was eliminated. The court, howno right, and hence there was ever, seems to assume the necessity of nothing to hinder such acceptance. a delivery, either actual or construcThe purchase of the check upon tive, as a condition precedent of the a forged or unauthorized indorse- action of trover. A constructive dement conferred no title, and, in con- livery by way of ratification of the templation of law, the check re- sending of the check through the mail mained untransferred. In this con- was, however, held sufficient. dition, it was subject to the plaintiff's It was urged in Lindenthal v Northacceptance, though misdirected, and, west State Bank (1921) 221 Ill. App. when accepted, the title vested though 145, that no right of action vested in the payee of the check, because it withdraw such proceeds, is liable to was not shown that the checks were the corporation, where it appears that delivered to him. The court, however, such person, as secretary, had no aufound that not only was there evidence thority to act for the corporation, and of the payee's possession, but the fact that the money so withdrawn was destood admitted by the pleading. voted to his personal use. Buena

Vista Oil Co. v. Park Bank (1919) 39 d. Application to various states of fact.

Cal. App. 710, 180 Pac. 12. This question has usually arisen

An express company which received where the check has been cashed and

checks and drafts issued or indorsed collected by a bank, but the same

to a corporation, upon the indorsement principle has been applied where a

of the corporation forged by an emcorporation or individual other than a

ployee, and which issued money orders banker has cashed it. ALLEN V. M.

for the amount of the checks and MENDELSOHN & SON (reported here

drafts, payable to various persons; with) ante, 1063; Hamlin's Wizard

which money order the employee afterOil Co. v. United States Exp. Co. wards converted to his own use, is (1914) 265 Ill. 156, 106 N. E. 623,

liable to the corporation for the 7 N. C. C. A. 638; Meyer v. Rosen

amount of the checks and drafts thus heim (1903) 115 Ky. 409, 73 S. W. received. Hamlin's Wizard Oil Co. v. 1129; A. Blum Jr.'s Sons v. Whipple

United States Exp. Co. (1914) 265 Ill. (1907) 194 Mass. 253, 13 L.R.A.(N.S.)

156, 106 N. E. 623, 7 N. C. C. A. 638. 211, 120 Am. St. Rep. 553, 80 N. E. 501;

The right of the payee to maintain Shaffer v. McKee (1869) 19 Ohio St.

an action and recover against the 526; Graton & K. Mfg. Co. v. Redels

bank was sustained in Lindenthal v. heimer (1902) 28 Wash, 370, 68 Pac.

Northwest State Bank (1921) 221 Ill. 879.

App. 145, although the payee had acUsually the action is by the payee,

cepted from the employee who forged but in some cases it has been by an

the indorsement property into which owner other than the payee. Talbot

the proceeds of the check had gone, the v. Bank of Rochester (1841) 1 Hill

amount received, however, not being (N. Y.) 295. In fact, in this case, the

sufficient to cover the defalcation. plaintiff did not appear to be a party

The fact that the payee did not give to the certificate of deposit there in- the bank notice immediately upon disvolved. Apparently, the plaintiff pur

covery of the forgery was held not to chased the certificate, but it was in

prevent a recovery in Lindenthal v. dorsed directly from the payee to one Northwest State Bank (ill.) supra, to whom the plaintiff sent it inclosed

where it is stated that no business rein a letter. It was held, however, that

lation whatever existed between the the plaintiff being the owner, and the

payee and the bank in question, and indorsee never having assented to the

knowledge of the forgery did not come indorsement, the transfer to them was

to the payee before the proceeds thereincomplete, and plaintiff retained the

of had been used by the employee who right to alter or strike out the indorse

committed the forgery; hence, no duty ment.

to give notice was due from the payee A bank which, without previous

to the bank. dealings with a corporation and unac

In Burstein v. People's Trust Co. quainted with its officers or their pow

(1911) 143 App. Div. 165, 127 N. Y. er, accepts a check by its terms pay

Supp. 1092, the payee was allowed to able to the order of such corporation

recover of a bank to which the check and bearing the indorsement only of had been transferred, notwithstanding the payee's name by its secretary, col

such payee had unsuccessfully atlects the amount of such check and

tempted to collect from the drawer of places it to the credit of the person the check. presenting it, and, without making In Arnold v. Cheque Bank (1876) any inquiries to the author- L. R. 1 C. P. Div. (Eng.) 578, 45 L. J. ity of such person, permits him to C. P, N. S. 562, 34 L. T. N. S. 729, 24

31 A.L.R.-68.

as

Week. Rep. 759, the draft in question action for the recovery of the amount had been purchased by the payee for of the check. The court treats the the purpose of making a remittance, money paid to the defendant bank as and had been indorsed by him special- not the money of the drawers of the ly to his creditor, and deposited in a check, but the money of the drawee letter addressed to the creditor. The bank which paid it; hence, the money letter was opened and the draft ex- received by the defendant bank was tracted, and the indorsement of the held not to be the money of the payee, creditor forged. The court states it nor to have been received for the use to be clear that the property in the

of the payee.

The drawers of the draft had never in fact passed out of check and the payee were held to be the plaintiff's payee, for indorsement, in no way affected by the payment of according to the court, consists not the amount of the check by the drawee merely of the written indorsement on bank to the defendant bank on the the draft, but ere must be a delivery forged indorsement. The deposits of with intention to transfer the prop- the drawers on which they had drawn erty, and in this case there was no the checks were still their money, and delivery of the draft to the indorsee. the indebtedness of the drawers to

the payee, for which the checks were III. Minority rule.

given, still existed and warranted an The Pennsylvania supreme court

action by the payee against his debthas held the payee of a check not en

ors, the drawers of the checks. It is titled to recover the amount thereof

further stated that the money paid the from a bank which cashed it for an

defendant bank on the several checks employee of the payee, upon an unauthorized indorsement, and subsequent

was the money of the drawee bank, in ly collected the same from the drawee.

which neither the drawers of the Tibby Bros. Glass Co. v. Farmers &

check nor the plaintiff had any interM. Bank (1908) 220 Pa. 1, 15 L.R.A.

est, and, having been paid on forged (N.S.) 519, 69 Atl. 280. The decision

indorsements, it might be recovered in this case rests upon the theory that

from the defendant by the paying the action of the defendant bank in bank. cashing the check created no relation Compare Chicago, B. & Q. R. Co. v. between it and the payee that would Burns (1901) 61 Neb. 793, 86 N. W. warrant the latter in maintaining an 493, supra, II. a.

W. A. E.

MELVIN C. TIPTON, Piff. in Err.,

v.
STATE OF OKLAHOMA.

Oklahoma Criminal Court of Appeals

February 17, 1923.

(- Okla. Crim. Rep. —, 212 Pac. 612.) Robbery - forcible collection of claim.

1. In a robbery case, where the taking of the property is for the purpose of forcibly collecting uncertain unliquidated damages as compensation for an alleged felonious assault on the taker's wife, such forcible taking may constitute robbery, and does not come within the rule that the forcible taking and retention of the property of another for the purpose of paying or securing the payment of a debt might not be deemed robbery.

[See note on this question beginning on page 1081.] Indictment power to amend.

language as to charge robbery in both 2. Where original complaint the first and second degrees, it is not charging robbery is couched in such error for the court to permit the coun.

Head notes by BESSEY, J.

an

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