The “West Coast Co.” is a fictitious person, and the “Western Evergreen Co.” may have been a firm doing business in San Francisco. It was not known by the drawer (American Exprеss Company) that these drafts were payable to the order of fictitious or nonexisting payees.
After receiving said drafts from the express company, Crozer indorsed them by writing thereon respeсtively the names of the payees, and cashed same at the defendant bank. These drafts were then indorsed by the cashier of the defendant bank to the order of the Continental and Commercial National Bank of Chicago, with the further written statement, “Prior indorsements
The pertinent and primary question on this appeal is: Did plaintiff on its evidence make a prima-facie ease? No evidence was introduced by defendant. The trial court sustained defendant’s motion at the close of plaintiff’s testimony, and directed a verdict in defendant’s favor.
If plaintiff’s рetition stated a cause of action, and its aver-ments were sustained by plaintiff’s evidence, then the court was in error in directing a verdict, regardless of the defenses tendered by the answer, and rеgardless of the failure of plaintiff to allege and prove special damage. Plaintiff did plead:
"That the claim for the amounts paid by plaintiff to take up said drafts is still the property of the plaintiff and is wholly due and unpaid, though demand has been duly made by plaintiff upon defendant therefor.”
This appeal presents the question: May a drawee, without pleading and proving a special damage, recover the procеeds of a draft payable to the order of a fictitious or nonexisting payee not known to be such by the drawer, from a person to whom it was paid through a forged or unauthorized indorsement?
With the answer to the question, this opinion concerns Itself, and the answer must be found in the Negotiable Instruments Law of this state, and if not contained therein, under the rules of the law merchant. (Section 3060-a196, Code Supрlement, 1913.)
I. Were the instruments in suit payable to bearer¶
The drafts in' question are negotiable in form, and payable either to fictitious or nonexisting persons.
“Person” includes a body of persons, whether incorporated or not. Section 3060-al91.
The plaintiff company, as drawer, intended that these drafts should be paid to the named payees, and not to the рurchaser, Crozer, and it was not known by the drawer that these drafts were payable to the order of fictitious or nonexisting payees. This being true, the drafts were not payable to bearer.
Were they payable to Crozer himself, so that his indorsements of them are valid? No doubt he intended them to be so payable, although he indorsed by writing the names of the payees, and added to the first draft his own name. In other words, Crozer himself intended to be the payee, but the drawer did not intend to make him so. If, in fact, there was a genuine firm, it alone could indorse; if there was not a genuine firm, then nobody could indorse. The drafts would not be payable to bearer, because the drawer did not know that the payees were fictitious or nonexisting. They would not be payable to Crozer, because the drawer did not intend that the drafts should be so payable. See Seaboard Nat. Bank v. Bank of America,
The intent of the drawer is the test, and this intention must necessarily arise from knowledge, and exist as an affirmative fact in the mind of the drawer at the time of the delivery of the paper.
The names of the payees in these drafts are not in the same category as “cash,” “bills payable,” “expenses,” “estate,” and words of similar import. The latter do not imрort to be the name of any person. Furthermore, the evidence discloses that the names used were not the trade or assumed name of Crozer.
True, the drawer, by drawing the instrument, admits the existence of the payee, and his then capacity to indorse. Section 3060-a61. This, however, confers no authority upon the purchaser to indorse the name of the payee and negotiate the instrument.
It is provided:
This provision makes the forged or unauthorized signature inoperative, and the inhibition precludes a recovery on the instrument against any person, where the right of recovery is predicated on such inoperative signature. Beem v. Farrell,
Suppose Crozer had indorsed in the same manner and presented the drafts to the drawee, and received payment thereon. Plaintiff would be in the same position as it is now as to Crozer. It could sue him for money had and received. The defendant bank, if title failed, is in the same position, and is liable for money had and received. United States v. National Bank of the Republic,
Suppose the drawee had refused to pay the drafts to the defendant' bank, as was its privilege, and the bank became plaintiff, to recover from the drawеr the moneys paid by the bank to Crozer. It would recover, if at ail, on the strength of its own title. The express company could defeat a recovery, as it could show that the title of the bank was prеdicated on forged or unauthorized indorsements. The drafts were payable
To be a de-facto holder of a bill or note payablе to order, such holder must not only have possession, but must be the person to whom it is payable. Ogden on Negotiable Instruments, Section 95. "Where plaintiff is the payee, the production of the paper is sufficient. Tullis v. McClary,
Plaintiff proved that the indorsements through which the defendant bank sеcured its apparent title were through unauthorized signatures, if not forged in the criminal sense. Clearly, these indorsements were made “without the authority of the person whose signature they purported to be.” It was upon the defendant to allege and prove estoppel “precluding plaintiff from setting up want of authority.” It is not incumbent upon the plaintiff to negative the defensive matters contеmplated by the statute. The defendant bank was under no obligation to honor the drafts. It could pay or refuse to pay. Every indorsement involves the certainty of two things: (1) The identity of the indorser, and (2) the genuinеness of his signature. See Armstrong v. Pomeroy Nat. Bank,
Does it make any difference that the drawer and the drawee are one and the same person 1 In such case, the payee or holder may treat the draft as a promissory note, if he so desires. Section 3060-a130.
The signature of a fictitious name or firm, made with the intent to defraud, constitutes forgery. Harmon v. Old Detroit Nat. Bank,
The trial court was in error in sustaining defendant’s motion for a directed verdict, and in directing the jury to return a verdict for defendant. Plaintiff established a prima-faeie case when it rested. The judgment entered is — Reversed.