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(53 lpp. D. C. 59, 288 Fod. 265.) 447; Crisp v. State Bank, 32 N. D. 263, and, in turn, no title to the money 155 N. W. 78; Hamlin's Wizard Oil collected upon the checks. Co. v. United States Exp. Co. 265 Ill. If the drawee banks had refused 156, 106 N. E. 623, 7 N. C. C. A. 638;

to cash the checks, a different case People v. Bank of North America, 75

would be presented. Plaintiff would N. Y. 547; Robinson v. Chemical Nat. Bank, 86 N. Y. 404; A. Blum Jr's

then have recourse against its cusSons v. Whipple, 194 Mass._253, 13

tomers, the drawers of the checks, L.R.A.(N.S.) 211, 120 Am. St. Rep. 553,

whose funds in the drawee banks, 80 N. E. 501; Bristol Knife Co. v. against which the checks were First Nat. Bank, 41 Conn. 421, 19 Am. drawn, would still be intact. PlainRep. 517; Standard Steam Specialty tiff, however, by collecting from the Co. v. Corn Exch. Bank, 220 N. Y. 478, drawee banks, foreclosed the right L.R.A.1918B, 575, 116 N. E. 386; 1 of action by plaintiff against the Morse, Banks & Bkg. 5th ed. § 284, p. drawers of the checks. 491; 3 Randolph, Com. Paper, 2d ed. §

The checks, when received and col1469; United States Portland Cement

lected by defendant, were the propCo. v. United States Nat. Bank, 61 Colo. 334, L.R.A.1917A, 145, 157 Pac.

erty of plaintiff, and plaintiff's title 202; Schaap v. First Nat. Bank, 137

therein could not be defeated by a Ark. 251, 208 S. W. 309.

forged indorsement. Plaintiff's title Van Orsdel, Associate Justice, de

remained the same as it was before livered the opinion of the court:

the forgery was committed; hence, By declaration in the common

when defendant received the money counts, appellee sued appellant in

on the checks, it had
no more title to the paid on forged

Bank-checks the supreme court of the District of Columbia for the amount of twenty- money than it had Indorsements two checks, payable to the order of

to the checks, and plaintiff, which were cashed by de- plaintiff could recover the amount fendant bank. The bookkeeper of collected on the checks in an action plaintiff extracted the checks from

for money had and received. This the mail, credited the accounts of

rule is sustained generally in the the customers from whom they were

states, and we have not been cited to received, indorsed the checks in

any Federal authority to the conplaintiff's name, cashed them at de- trary. Buckley v. Second Nat. Bank, fendant bank, and appropriated the

35 N. J. L. 400, 10 Am. Rep. 249; proceeds to his own use. The checks

Talbot v. Bank of Rochester, 1 Hill, were collected by plaintiff from the

295; Johnson v. First Nat. Bank, 6 respective banks on which they were

Hun, 124; Schaap v. First Nat. Bank, drawn. It is conceded that the book

137 Ark. 252, 208 S. W. 309; Meyer keeper had no authority to indorse

v. Rosenheim & Co. 115 Ky. 409, 73 and cash the checks. From a ver

S. W. 1129; United States Portland dict and judgment for plaintiff, de

Cement Co. v. United States Nat. fendant appealed.

Bank, 61 Colo. 334, L.R.A.1917A, The liability of defendant bank to

145, 157 Pac. 202; Graton & K. Mfg. plaintiff for the aggregate amount

Co. v. Redelsheimer, 28 Wash. 370, of the checks is the single question

68 Pac. 879; Kansas City Casualty involved. Counsel for defendant

Co. v. Westport Ave. Bank, 191 Mo. seeks to establish analogy to the set

App. 287, 177 S. W. 1092; Buena tled principle that the holder of a

Vista Oil Co. v. Park Bank, 39 Cal. check cannot maintain a suit against App. 710, 180 Pac. 12; Farmer the drawee bank. National Bank v. v. People's Bank, 100 Tenn. 187, 47 Millard, 10 Wall. 152, 19 L. ed. 897; S. W. 234; Indiana Nat. Bank v. First Nat. Bank v. Whitman, 94 U. Holtsclaw, 98 Ind. 85; Hamlin's S. 343, 24 L. ed. 229. But the suit Wizard Oil Co. v. United States Exp. here is not against the drawee bank, Co. 265 Ill. 156, 106 N. E. 623, 7 N. but against one who acquired no title C. C. A. 638; Shaffer v. McKee, 19 to the checks obtained from a de- Ohio St. 526; A. Blum Jr's Sons v. faulter upon his forged indorsement, Whipple, 194 Mass. 253, 13 L.R.A. (N.S.) 211, 120 Am. St. Rep. 553, 80 the agent's authority. This, howN. E. 501; Bristol Knife Co. v. First ever, implied liability on the part of Nat. Bank, 41 Conn. 421, 19 Am. the bank if the agent should be Rep. 517.

found to have been without authoriSimilar cases have been before ty to indorse the checks. Here the this court. In Crane v. Postal Teleg. lack of authority of the bookkeeper Cable Co. 48 App. D. C. 54, an action

was not only found by the jury, but for money had and received was

it is conceded. A like inference is brought by the payee of checks

deducible from our decision in Indiagainst the bank which cashed them on the indorsement of plaintiff's

ana Flooring Co. v. District Nat. agent. The court below directed a Bank, 51 App. D. C. 391, 280 Fed. verdict in favor of plaintiff. The

522. judgment was reversed for failure The judgment is affirmed, with to submit to the jury the question of costs.

ANNOTATION. Right of owner of check against one who cashes it on a forged or unauthorized

indorsement and procures its payment by drawee.

I. Introduction, 1068.

Alabama.—ALLEN V. M. MENDELII. Majority rule:

SOHN & SON (reported herewith) ante, a. In general, 1068.

1063. b. Theory, 1070.

Arkansas. Schaap v. First Nat. c. As affected by question of deliv

Bank (1918) 137 Ark. 252, 208 S. W. ery to payee, 1071.

309.
d. Application to various states of
fact, 1073.

California.—Buena Vista Oil Co. v. III. Minority rule, 1074.

Park Bank (1919) 39 Cal. App. 710,

180 Pac. 12. 1. Introduction.

Colorado.- United States Portland The right of the owner of the check

Cement Co. v. United States Nat. Bank against the drawee bank is discussed

(1916) 61 Colo. 334, L.R.A.1917A, 145, in the annotation in 14 A.L.R. 764. 157 Pac. 202. The present annotation is confined

District of Columbia.-MERCHANTS' to the right of the owner of a check BANK v. NATIONAL CAPITAL PRESS (reagainst one who cashes it and collects ported herewith) ante, 1066. from the drawee. The defendant in

Illinois.—Hamlin's Wizard Oil Co. these cases is usually a bank, but, as

v. United States Exp. Co. (1914) 265 will be seen hereinafter, the same Ill. 156, 106 N. E. 623, 7 N. C. C. A. principles have been applied where a

638; Independent Oil Men's Asso. V. corporation or an individual not en

Ft. Dearborn Nat. Bank (1924) 311 gaged in the banking business cashes

Ill. 278, 142 N. E. 458; Lindenthal v. the check and procures its payment. Northwest State Bank (1921) 221 Ill. II. Majority rule.

· App. 145; Higgin Mfg. Co. v. Foreman

Bros. Bkg. Co. (1921) 222 Ill. App. 29. a. In general.

Indiana. Indiana Nat. Bank v. According to the general rule, a Holtsclaw (1884) 98 Ind. 85. bank or other corporation, or an in- Kansas.-Hope Vacuum Cleaner Co. dividual, who has obtained possession v. Commercial Nat. Bank (1917) 101 of a check upon an unauthorized or Kan. 726, 168 Pac. 870. forged indorsement of the payee's sig- Kentucky. - Meyer v. Rosenheim nature, and who collects the amount (1903) 115 Ky. 409, 73 S. W. 1129. of the check from the drawee, is liable Massachusetts.-A. Blum Jr's Sons for the proceeds thereof to the payee v. Whipple (1907) 194 Mass. 253, 13 or other owner, notwithstanding they L.R.A.(N.S.) 211, 120 Am. St. Rep. 553, have been paid to the person from 80 N. E. 501. whom the check was obtained.

Mississippi.—Thomas v. First Nat.

Bank (1911) 101 Miss. 500, 39 L.R.A. rected not to pay the amount to the (N.S.) 355, 58 So. 478.

local agent, is liable to the state agent Missouri. Kansas City Casualty for the sum so paid, notwithstanding Co. v. Westport Ave. Bank (1915) 191 the local agent had been receiving inMo. App. 287, 177 S. W. 1092.

surance premium checks payable to New Jersey. - Buckley v. Second himself and the state agent, and had Nat. Bank (1872) 35 N. J. L. 400, 10 been cashing these checks at the deAm. Rep. 249.

fendant bank and sending the state New York. Talbot v. Bank of agent his portion of the proceeds. Rochester (1841) 1 Hill, 295; People First Nat. Bank v. Patterson (1916) v. Bank of North America (1879) 75 Tex. Civ. App. 185. S. W. 1018. N. Y. 547; Robinson v. Chemical Nat. Upon the assumption that the cashBank (1881) 86 N. Y. 404; Standard ier of a branch office of a telegraph Steam Specialty Co. v. Corn Exch.

company had no right to act for the Bank (1917) 220 N. Y. 478, L.R.A. company in indorsing checks payable 1918B, 575, 116 N. E. 386 (point under to the company and receiving cash annotation conceded); Johnson V. thereon from a bank, and that the First Nat. Bank (1875) 6 Hun, 124, bank's payment to the cashier was affirmed without opinion in (1877) 68 wrongful, it was held in Crane v. N. Y. 616; Schmidt v. Garfield Nat. Postal Teleg. Cable Co. (1918) 48 App. Bank (1892) 64 Hun, 298, 19 N. Y. D. C. 54, that if the bank was able to Supp. 252, affirmed without opinion in prove that the cashier had used the (1893) 138 N. Y. 631, 33 N. E. 1084; money for the benefit of his principal, Burstein v. People's Trust Co. (1911) the principal could not recover from 143 App. Div. 165, 127 N. Y. Supp. the bank. 1092; E. Moch Co. v. Security Bank The payee of a check was allowed to (1917) 176 App. Div. 842, 163 N. Y. recover of a bank which had cashed Supp. 277, affirmed without opinion the same upon an unauthorized inin (1919) 225 N. Y. 723, 122 N. E. 879; dorsement in Hinton Electric Co. v. Salomon v. State Bank (1899) 28 Misc. Bank of Montreal (1903) 9 B. C. 545. 324, 59 N. Y. Supp. 407; Rosenberg The headnote states that defendant v. Germania Bank (1904) 44 Misc. 233, bank was the drawee bank; the opin88 N. Y. Supp. 952; Ellery v. People's ion does not make this fact clear. Bank (1909) 114 N. Y. Supp. 108 (rule In Chicago, B.& Q. R. Co. v. Burns admitted).

(1901) 61 Neb. 793, 86 N. W. 483, an North Dakota.—Crisp v. State Bank action by the payee of railroad pay (1915) 32 N. D. 263, 155 N. W. 78. checks against the railroad company,

Ohio.-Shaffer v. McKee (1869) 19 for wages for which the pay checks Ohio St. 526.

were issued, after the pay checks had Tennessee. Farmer v. People's been lost and cashed upon the forged Bank (1897) 100 Tenn. 187, 47 S. W. indorsement of the payee, it was urged 234; Knoxville Water Co. v. East that the railroad company was not Tennessee Nat. Bank (1910) 123 Tenn. liable to the payee, but that the bank 364, 131 S. W. 447.

at which the checks were made payWashington.-Graton & K. Mfg. Co. able, and which had paid the same upv. Redelsheimer (1902) 28 Wash. 370, on the forged indorsement, was liable. 68 Pac. 879.

The pay checks were not drawn upon England.-Arnold v. Cheque Bank the bank in question, but were made (1876) L. R. 1 C. P. Div. 578, 45 L. J. payable at it. The court denied the C. P. N. S. 562, 34 L. T. N. S. 729, 24 liability of the bank to the payee, on Week. Rep. 759.

the theory that, the pay checks not A bank which cashed a check drawn being orders on the bank in which by an insurance company payable to the company was a depositor, so its state and local agents, upon the that, when issued and accepted, they indorsement by the local agent of his amounted to an assignment

comown name and that of the state agent, pany's funds in the bank, the payee after the bank had been expressly di- had no remedy against it.

.

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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 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

payee. Mfg. Co. v. Redelsheimer (1902) 28 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

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