Mass. 231, 55 Am. Rep. 471, 4 N. E. 619, a was the indorsement of the payee of the person who assumed the name of Barney check by that name." It would follow, took to Coleman, an auctioneer, a stolen under this reasoning, that if the check had horse and buggy, to be sold. Before selling been paid by the bank it would have been a them, Coleman made inquiry, and received good payment. In the case of United States a favorable report of the standing of the v. National Exch. Bank, 45 Fed. Rep. 163, real owner of the assumed name. After the decided by the circuit court of the United sale he gave a check, drawn to the order of States for the eastern district of Wisconsin, Barney, to the person for whom he sold the it was held that a bank was not liable for team, who indorsed it and parted with it for the payment of a check on a forged indorse value. Payment of the check having been ment where the person who committed the stopped, suit was brought by the holder forgery and received the money was in fact against Coleman, and a recovery had. In the person to whom the drawer delivered the the opinion it was said: "It is clear from the check, and whom he believed to be the payee facts that, although the defendants may have named. Shuman had, by fraud, obtained been mistaken in the sort of man the person possession of a postoffice money order drawn they dealt with was, this person was in favor of Erben, on which he forged Erintended by them as the payee of the check, ben's indorsement, and in payment of the designated by the name he was called in the order received a check from the postmaster, transaction, and that his indorsement of it drawn on the bank defendant, to the order held not to apply where the drawer supposes indorsed it honestly as the result of a fraud the payee to be a real person; and in the cases practised upon him, is not thereby relieved previously cited the drawer, of course, sup- from liability to the payee. The court held, posed that the payee named was a real person. contrary to the view taken in Kohn v. Watkins, In Kehn v. Watkins, 26 Kan. 691, 40 Ain. 26 Kan. 691, 40 Am. Rep. 336, and Clutton v. Rep. 340, however, the rule was applied to Attenborough [1897] A. C. 90, 66 L. J. Q. drafts which an impostor, by signing fictitious B. N. S. 122, 75 L. T. N. S. 556, 45 Week. names to applications for loans, induced de- Rep. 276, that the rule with reference to ficfendants to draw to the order of fictitious pay-titious indorsees did not apply, because the ees, the drawer believing them to be real persons. The court held that, as between the drawer and a bona fide holder, the drafts must be treated as if payable to bearer, and the drawer must bear the loss. There were other drafts drawn payable to the order of real persons, and forwarded to the impostor, who as sumed to be the agent of such persons. The plaintiff contended that, inasmuch as such persons had no knowledge of, or interest in. the drafts, they must be deemed fictitious persons for the purposes of the transaction, but the court held that the rule did not apply as to those drafts, because the payees named were real persons, and were present to the drawer's mind, when he drew the drafts, as the parties to whose order they were to be paid. Clutton v. Attenborough [1897] A. C. 90, 66 L. J. Q. B. N. S. 122, 75 L. T. N. S. 556, 45 Week. Rep. 276, also held that a check payable to the order of a person who did not exist, although the drawer supposed he did, was within the English statute providing that where the payee is a fictitious or nonexisting person the bill may be "treated as a bill payable to bearer." In Phillips v. Mercantile Nat. Bank, 140 N. Y. 556, 23 L. R. A. 584, 35 N. E. 892, AffirmIng 07 Hun, 378, 22 N. Y. Supp. 254, also, the rule was applied. In that case a check was drawn by the cashier of a bank in its name upon another bank for the purpose of speculating in stocks, without the knowledge of the officers of his bank, the names of the payees being actual customers, but such customers having no knowledge of the checks or connection with the transaction. The court held that the payees must, for the purposes of the check in question, be deemed fictitious. The court below held that the cashier's knowledge that the payees named did not represent real persons was chargeable to his bank, and that view was probably taken by the court of appeals, although that point is not discussed. In Chism v. First Nat. Bank, 96 Tenn. 641, 32 L. R. A. 778, 36 S. W. 387, the court held that a drawee bank which paid a draft relying en a forged indorsement thereon of the name of a fictitious person to whom the payee had payee, when he indorsed the check, believed in the existence of the indorsee. So, also, Shipman v. Bank of State, 126 N. Y. 318, 12 L. R. A. 791, 27 N. E. 371, infra, . holds the rule does not apply where the drawer of the check believes that the name of the payee represents a real person. For notes: Negotiable paper; use of fictitious names,-see, Armstrong v. Pomeroy Nat. Bank (Ohio) 6 L. R. A. 625; Use of fictitious name as affecting validity of instrument-see Wiehl v. Robertson (Tenn.) 39 L. R. A. 423. Theory of estoppel. in Forbes v. Espy, 21 Ohio St. 474, a person, for the purpose of smuggling goods, had assumed a false name. He sold some of the smuggled goods to a firm, which, in payment, sent him a bank draft purporting to be payable to his order under the assumed name. He indorsed it and sold it to plaintiff. The payment of the bill was stopped, and the plaintiff brought an action against the bank which drew the draft. The parties who purchased the goods were compelled to pay the duty of which the government had been defrauded. The opinion says the question involved in the case is whether the defendant could set up as against the plaintiff (a bona fide holder) the fraud practised upon the firm. It was conceded that they could if the purchasers themselves could do so, and it was also conceded that if the legal title to the bill was in the plaintiff the defense could not be sustained. The court passed over the question whether the legal title was really in the plaintiff, and decided in plaintiff's favor, upon the ground that the purchasers were estopped from denying that the legal title was in him. The adoption of the theory of estoppel Instead of that of actual intention would seem to avoid the difficulty, inherent in the latter theory, of truthfully attributing to the drawer of the check an intention that the person to whom he delivers it shall be the payee, notwithstanding that the check itself describes the payee by the name of another person from whom the consideration purports to come, and also avoids of Erben, on which he forged Erben's indorse- | was the owner of the property, he had exement, and it was paid by the bank. This cuted a mortgage, and was entitled to paydecision, as the others cited, is put upon the ment. The clear intention was to pay him, ground that the intention of the drawer of although there was a mistake as to the facts the check was that it should be paid to the on which the intention was based. Nor is person to whom he delivered it. There are the solution of the question involved to be a number of other cases which more or less sought in determining whether the bank was directly recognize the principle on which negligent in dealing with its depositor, Rogthese decisions are based, but in which there ers. This was suggested at the argument, no direct ruling on the subject, and we have but mainly as a makeweight. The case was found none which express a contrary view. not presented or argued on that ground, and The facts of this case do not, we think, in view of the principles by which the quesbring it within the rule that a bank paying tion of liability must be determined, and of a check to order on a forged indorsement the facts as shown at the trial, it could not may not charge the payment to the drawer's have been. The true ground of liability, if account, for the reason that the check was any existed, was that the bank collected of issued to the person whom the drawer in- the trust company a check drawn to order, tended to designate as the payee. If not on which the indorsement was forged. Bewithin the rule, the plaintiff has no stand- tween the bank and the trust company, as ing whatever. It is a perverted statement the drawer of the check, no relation, conof the whole transaction to say that the tractual or otherwise, existed. The drawer check was intended for Dr. Herman S. Bis- of a check cannot maintain an action against sey, and that he alone was entitled to receive one who collects it on a forged indorsement payment. Dr. Bissey had no more right to from the bank on which it was drawn, althe check than had Ashley. He had given though the bank paying the check may. The nothing for it. No one was entitled to it, remedy of the drawer is against the bank and, had the truth been known, it would not which pays his check, and the bank's remedy have been issued. Under the supposed facts is against the person to whom it paid. The on which the trust company acted, Ashley liability of the party collecting the check the obvious absurdity of the position, taken, | pose a retail merchant sets up an estoppel impliedly at least, in Dodge v. National Exch. against a wholesale firm to deny that a certain Bank, 30 Ohio St. 1, supra, of imposing the person represented it, as its traveling salesman, loss upon the drawer, where he was completely and relies upon the fact that the firm had indeceived, and relieving him from it where he trusted him with the usual outfit furnished its was not completely deceived, but intended to salesmen; would it be necessary for the merdevolve upon the bank the duty of having the chant, in order to establish an estoppel, to show person to whom the check was delivered iden- that he knew at the time he acted on the aptified as the person whose name is given in the pearance created by the fact that the person check. It may, perhaps, be urged that there was in possession of the outfit, that the same can be no estoppel in such a case, because the had been intrusted to him by the firm, and that bank at the time it cashes the check is not he had not obtained possession of it in any aware that the check was delivered to the im- other way? True, the outfit, for aught the postor rather than to the person whose name merchant knew, may have been stolen. But t bears, and that the appearance to the bank the fact is, the firm intrusted it to the supposed when the check is presented is exactly the same salesman, and by so doing created the appearas it would be if the check had in fact been ance by which the merchant was deceived. Of originally delivered to the payee named therein, course, if, as a matter of fact, the outfit had and had then been stolen by the impostor and been stolen, there would be no basis for an esthe indorsement forged, in which case, toppel, because, although the appearance to the cededly, the bank would be liable. The follow- merchant was just as deceptive, it was not due ing considerations are suggested in reply to that to an act of the firm. argument: When the bank pays a check upon a forged indorsement it does so in the belief that the person who indorsed it was the person whom the drawer intended to designate as payee, and this is so whether the check was originally delivered to the impostor, or stolen by him after delivery to the true payee. This belief is largely, and, when the person who presents the check is not identified, is solely, induced by the fact that the check is, or was, at the time the impostor indorsed it, in his possession; and the bank in either case acts on the appearance created by that fact. But when the check is originally delivered to the true payee, and is then stolen and the indorsement forged, the appearance created by the fact that the check has been in the possession of the person who indorsed it is not due to any act on the part of the drawer, and therefore there is no estoppel against him; but when the drawer delivers the check to the impostor in the belief that he is the person named as payee, that appearance is due to the act of the drawer, and, therefore, if the other elements of an estoppel are present, it is not apparent why an estoppel cannot be successfully asserted. Sup con Summary. Whatever the true theory may be, it is apparent from the foregoing cases that the drawer of a check, draft, or bill of exchange, who delivers it to an impostor, supposing him to be the person whose name he has assumed, must, as against the drawee or a bona fide holder, bear the loss where the impostor obtains payment of, or negotiates, the same. On the other hand, if the check, draft, or bill is delivered to an impostor who has assumed to be the agent of the person named as payee, the loss will not fall on the drawer, at least if he was free from negligence, and there was a real person bearing that name, whom he intended to designate as payee. Of course, even where a drawee bank is primarily liable for the loss, the drawer may, by reason of his subsequent negligence in examining vouchers returned to him by the bank, become liable, and thus relieve the bank. For a note on duty of depositors in respect to forged checks charged to him by the bank, see note to First Nat. Bank v. Allen (Ala.) 27 L. R. A. 426. G. H. P. | arises from his implied warranty of the indorsement. This liability is founded on contract, and not on negligence, and it exists, if at all, whether there was negligence or not. But if we consider the question in this light the plaintiff has no case. The fraud was, in effect, consummated when the check was delivered to Ashley. He would have received money instead of a check if he had asked for it, or he could have drawn the money in the banking department, in an adjoining room. Any right of the trust company to recover must rest on the assumption of its entire good faith and innocence, and, if it gave a check to Ashley with any reservation or doubt as to his honesty in the transaction, it is estopped by the fact that it gave, to one of whom it had reason to be suspicious, the means of perpetrating a fraud on others. The officers of the trust company, of course, had no doubt. They acted in entire good faith, and, it may be conceded, with ordinary prudence; but the loss was occasioned by their error, and there is no reason, legal or equitable, why it should be shifted to another. The judgment is reversed. Dean, J., dissenting: The pretended Bissey then forged the name of Herman S. Bissey on the back of the check, and followed this with the indorsement of name G. B. Rogers, and presented it for deposit to the account of the latter at the Northwestern National Bank, this appellant. The bank accepted it, indorsed it for collection, and by its messenger sent it back to the title company, by whom it was paid in the ordinary course of business. The man who assumed the name of Rogers soon after, by checks on the national bank, drew out the money. In about six months thereafter the title company discovered the forgery of Bissey's name, and the worthlessness of the mortgage. Demand for payment being refused by the national bank, this suit was brought. There was no dispute as to the facts. The court below directed the jury to find for plaintiff, and we have this appeal by the national bank, defendant, assigning for error the peremptory instruction of the court below. A majority of my brethren are of opinion the court erred. I think it was right. I put the case wholly upon the principle or rule that, where one of two innocent persons must suffer by the wrong of a third, he shall stand the loss whose fault or neglect made A man representing himself as John Ash- the loss possible. Now, notice the facts, as ley called upon Dr. Herman S. Bissey, at his concerns the Land Title Company: It residence, No. 1630 North Sixteenth street, transacts business of millions of dollars anin the city of Philadelphia. He was entire-nually in a large city, insures titles, and ly unknown to Bissey, but pretended that he places mortgages. Probably not one tenth desired to purchase a house and lot, No. 2352 of those who deal with it are personally North Broad street,—a property owned by known to its officers. How shall it identify Bissey, and which he wanted to sell. They them, and thus guard against swindlers? It agreed on the terms, and Ashley got from seems to me, the only practicable way is to Bissey his deed for the premises, on the pre- have its customers introduced by reputable tense that he wanted to have it examined, business men, who are known to the officers. and took it away with him; first, however, That was the method pursued here. Mr. paying $5 on account. With the deed in his Middleton, well known to the bank, who had possession, Ashley called upon R. Taylor himself been imposed upon, introduced the Middleton, a real-estate broker of unques- swindler to the title company as Dr. Hertioned good character, and, representing man S. Bissey, the owner of premises No. himself as Dr. Herman S. Bissey, the grantee 2352; and this pretended Bissey had the in the deed, opened with him negotiations deed in his possession. Shall the company for a loan of $5,000 on a mortgage of the call in other reputable business men to corproperty. Bissey was unknown to Middle- roborate one whose prudence and integrity ton, and the latter, assuming the truthful- are unquestioned? The company, in the exness of the representations, introduced Ash-ercise of all the care that any reasonable ley to the Land Title & Trust Company, this plaintiff, as Bissey, the grantee in the deed, that he might procure a title insurance policy on the premises, and also as a party who might place for him the mortgage loan. Bissey was wholly unknown to the officers of the company. The title was insured, and the loan granted. The "title department" of the company took the mortgage, and delivered to the pretended mortgagor, Bissey, its check, as follows: Philadelphia, Nov. 1, 1897. The Land Title and Trust Company: Pay to the order of Herman S. Bissey four thousand nine hundred and twenty-two and dollars, pro. of mtg. on No. 2352 N. Broad St. William R. Nicholson, President. J. Lord Rigby, Settlement Clerk. $4,922.25. rule of law or business conduct required, necessarily assumed that Mr. Middleton represented the truth when he said to them, in effect, "This man is Dr. Herman S. Bissey, the owner of premises No. 2352 North Broad street." It is argued that if the title company had paid in bank bills, instead of by check, it would have been the loser. A sufficient answer to this is that it did not pay in bank bills, but by check. A conjecture as to what might have been the case on some other state of facts helps us not in determining the issue. We may conjecture that if, without being identified by one well known to it, the title company had assumed the identity of Bissey from the mere possession by him of the deed, the loss would have been its own. But, to impose the penalty, we must assume some degree of fault or neglect on part of the title company. The proof is undisputedly the other way. It did not pay | The title company did not accept a "pretty the swindler the money. It did not deliver straight story" from him. Middleton had to him its check until his identity was to introduce and vouch for him. He did not vouched for by one in every way worthy of present the check to the paying teller of belief. The pretended Bissey had the check. that company when he had possession of it; He, with very rare exceptions, could not for, as stated by Mr. Nicholson, the presihave drawn the money at any bank teller's dent, that officer had nothing whatever to window in this city without proof of iden- do with, or knowledge concerning, the opertity; that is, that he was Dr. Herman S. ations of the real-estate department. The Bissey, the payee. It is argued that if the wrongdoer believed or feared identification swindler had gone from the "title depart- would be required there. He preferred the ment" to the company's paying teller, in the bank, which believed a total stranger's same building, it would have been cashed "pretty straight story;" and the result without proof of identity. If he had done shows that, while his conduct was crooked, so, and received the money, that would have his judgment was correct. Everyone conbeen the fault of the paying teller; and, of nected with this transaction was deceived course, the title company would have had to by the pretexts of the swindler, except the bear the loss. But he did not present it Land Title Company, the one now, by the to the paying teller of the drawer. Why? judgment of this court, made to suffer. Dr. Because, it is fair to assume, he wanted no Bissey, allured by the prospects of a sale, questions asked by one who might know the trusts a total stranger with possession of his real Bissey, or require that someone vouch deed. Mr. Middleton believes he is Dr. Bisfor him as the real Bissey. In fact, he had sey, because he says so and exhibits Bisconcocted and prepared a plan to cheat the sey's deed. The defendant believes he is defendant bank,-one by which he could get Rogers, because he says so, rents him a box, the check cashed without identification. We opens with him an account, and accepts his take the testimony of defendant's cashier. say-so as to the genuineness of Bissey's He says the check drawn November 1 in fa- forged signature, undoubtedly forged by himvor of Bissey was received by him on deposit, self. The title company believes nothing he November 3, from George B. Rogers, it hav- says. It does believe what Mr. Middleton ing been previously indorsed by Bissey. Be- says, for it could not do otherwise without ing the second indorser, the cashier had a practically stopping business. The fraud right to assume that Rogers guaranteed the was only possible, in view of the undisputed genuineness of Bissey's signature, the payee; facts, because of the childish credulity and but who was Rogers, who guaranteed the consequent neglect of the most ordinary busigenuineness of the indorsement of the payee ness precautions by defendant. I would afin a $5,000 check? The cashier says: A firm the judgment. man representing himself to be Rogers called at the bank, with his wife, less than three weeks before, and rented a safe-deposit box, with instructions that his wife was to have access to it. He had no introduction, but said he lived in the neighborhood, and told a "pretty straight story." The bark designated a box for him. The assumed Rogers then came several times, and apparently used the box; then, on November 3, as we have said, less than three weeks afterwards, deposited the Land-Title check; in about four weeks more, drew it all out, but 25 cents. The bank had not heard of or known him before the renting of the box. It A. G. KNISELY, Treasurer of Dauphin has not heard of him since he drew the last check. Whether his real name was Rogers, except from the "pretty straight story" he told the cashier, no one knows, for the bank made no further inquiry. Whether he ever did business in Philadelphia, or resided in the neighborhood of the bank, no one knows, for inquiry since has resulted in no information. Yet this defendant bank, on the guaranty of a total stranger, accepts as genuine the forged indorsement of Bissey, and, in collecting the check, represents to the Land Title Company, by its own indorsement, that the preceding ones are genuine. It could not have got the money out of which it was defrauded, unless it had done so. On these facts, and not a single one of them is disputed,-whose neglect enabled the wrong doer to successfully perpetrate the cheat? Green, Ch. J: I concur in the foregoing dissenting opinion. A petition to amend the judgment having been filed, the following Per Curiam opinion was handed down May 29, 1900: In re petition to amend the judgment of words "and a venire facias de novo shall isthe supreme court by adding thereto the sue." Judgment amended by granting new venire as prayed for. County, v. David W. COTTEREL, Appt. Edward R. WOOD et al., Appts., บ. William S. VARE. (196 Pa. 614.) 1. A tax upon venders of merchandise, NOTE-AS to necessity of uniformity in license or privilege tax, see Chaddock v. Day (Mich.) 4 L. R. A. 809, and note; Simrall v. Covington (Ky.) 9 L. R. A. 556: Magenau v. Fremont (Neb.) 9 L. R. A. 786; Sayre v. Phillips (Pa.) 16 L. R. A. 49; Ex parte Williams (Tex. Crim. App.) 21 L. R. A. 783; Denver City R. Co. v. Denver (Colo.) 29 L. R. A. 608. Ottumwa v. Zekind (Iowa) 29 L. R. A. 734; 3. The classification of dealers of mer- ences in the number and mode of appoint- prescribing the powers and duties of their officers. 3. A provision in a statute that certain matters shall remain as now fixed by existing law, when it might have been omitted without any effect whatever, does not make the statute offend against a constitutional provision that all laws revived, amended, or extended shall be re-enacted at length. 6. The individual liberty of the citizen is not invaded, in violation of his constitutional rights, by a statute taxing venders of merchandise according to the amount of their annual sales. (July 11, 1900.) Allentown v. Gross, 132 Pa. 319, 19 Atl. 269; Williamsport v. Wenner, 172 Pa. 173, 35 Atl. 544. This court plainly and directly declared in Williamsport v. Wenner, 172 Pa. 173, 35 Atl. 544, that a license tax graduated by the amount of annual sales is a tax on property, estimated by the volume of annual sales. This was a reutterance of the decision in the case of Allentown v. Gross, 132 Pa. 319, 19 Atl. 269. As a property tax it is fatally defective because it lacks constitutional uniformity. The distinction made, which is legislatively regarded as the justification for this arbitrary taxation, is solely a difference in the persons to whom that vending is done. This is not a uniform method of classifying property for taxation. Another feature of illegal tax discrimination which this statute proposes to introduce depends exclusively and arbitrarily upon the place where the sales are made, irrespective of those who participate in them, either as venders or as vendees. Where the parts of a statute are so materially connected and dependent as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect the legislature could not pass the residue independently, if some parts are unconstitutional and void, all the provisions which are thus dependent are void. Warren v. Charlestown, 2 Gray, 84; Com. ex rel. Atty. Gen. v. Potts, 79 Pa. 164; Philadelphia v. Barber, 160 Pa. 123, 28 Atl. 644. It was the purpose, and it has been the effect, of the 9th article of the Constitution to forbid the continuance and prevent the repetition of the unjust system of taxation which APPEAL by defendant from a judgment of prevailed before the adoption of the consti the Court of Common Pleas for Dauphin County in favor of plaintiff in an action brought to enforce a license tax on merchants. Affirmed. As a property tax it is fatally defective because it is not levied and collected under a general law as required by the 1st section of APPEAL by plaintiffs from a decree of the the 9th article of the Constitution. Court of Common Pleas, No. 2, for Philadelphia County in favor of defendants in a suit brought to enjoin the enforcement of the mercantile license tax act of May 2, 1899. Affirmed. The facts are stated in the opinion. The act of assembly of May 2, 1899, is unconstitutional in the taxing method it pro poses. The said act of assembly taxes the property of the appellant, and is unconstitutional because it is in violation of § 1 of article 9 of the Constitution of Pennsylvania, providing that "all taxes shall be uniform upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws." State es rel. Toi v. French (Mont.) 30 L. R. A. 415, with note on limit of amount of license fees; Carrollton v. Bazzette (Ill.) 31 L. R. A. 522: Re Haskell (Cal.) 32 L. R. A. 527; State v. Harrington (Vt.) 34 L. R. A. 100; Singer Mfg. Co. v. Wright (Ga.) 35 L. R. A. 497; Wheeler v. Philadelphia, 77 Pa. 338. The exclusion of the merchandise venders of the city of Philadelphia from certain provisions of this statute makes the act in ques tion a local law. Morrison v. Bachert, 112 Pa. 322, 5 Atl. 739: Weinman v. Wilkinsburg & E. L. Pass. R. Co. 118 Pa. 192, 12 Atl. 288; Ayars's Appeal, 122 Pa. 266, 2 L. R. A. 577, 16 Atl. 356; Re Ruan Street, 132 Pa. 257, 7 L. R. A. 193, 19 Atl. 219; Re Wyoming Street, 137 Pa. 494, 21 Atl. 74; Pittsburgh's Petition, 138 Pa. 401, 21 Atl. 757, 761; Scranton v. Whyte, 148 Pa. 419, 23 Atl. 1043; Safe Deposit & T. Co. v. Fricke, 152 Pa. 233, 25 Atl. 530; Philadelphia v. Westminster Cemetery Co. 162 Pa. 105, 29 Atl. 349; Chalfant v. Edwards, 173 Pa. 246, 33 Atl. 1048. The act of assembly of May 2, 1899, is unconstitutional because it is in violation of Banta v. Chicago (Ill.) 40 L. R. A. 611; State v. Gardner (Ohio) 41 L. R. A. 689; Phoenix Assur. Co. v. Fire Department of Montgomery (Ala.) 42 L. R. A. 468; Fleetwood v. Read (Wash.) 47 L. R. A. 205; and State ea rel. Wyatt v. Ashbrook (Mo.) 48 L. R. A. 265. |