174 Ill. 571 | Ill. | 1898
delivered the opinion of the court:
The question, presented by this record, is within a very narrow compass. It is, whether a party, holding a draft under a forged endorsement of the payee therein, or what amounts to a forged endorsement, can compel the drawee to pay him the draft.
It is established clearly by the evidence, that the George A. Bent, who took the draft from the post-office and endorsed his name upon the back of it, was not the real payee, to whom the drawer of the draft intended to make it payable. It is true, that the real and intended payee and real owner of the draft was named George P. Bent; but the fact, that the name of the real owner and the name of the fraudulent possessor of the draft differ, so far as the middle letter of the name is concerned, does not make the case other than a case, where the name of the real payee and the name of the assumed payee are the same. This is so, because the law does not regard the middle initial letter as a part of a person’s name, but only recognizes one Christian name of a party. (Thompson v. Lee, 21 Ill. 241; Erskine v. Davis, 25 id. 251; Miller v. People, 39 id. 457; Bletch v. Johnson, 40 id. 116; Humphrey v. Phillips, 57 id. 132).
Where a bill is payable to the order of a person, and another person of the name of the payee gets hold of it, and endorses it to a party who takes it in good faith and for value, such party acquires no title to the bill. (Cochran v. Atchison, 27 Kan. 728). If the endorsement so 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 endorsement cannot be regarded otherwise than as a forgery.
In Barfield v. State, 29 Ga. 127, it was held that, where there were two persons of the same name, and one of them signed that name to certain notes with the intention that the notes might be used in trade as the notes of the other, it was a forgery. .
Blackstone (4 Com. 247) defines forgery to be the fraudulent making or alteration of a writing to the prejudice of another man’s right. “One may be guilty of forgery if he fraudulently signs his name, although it is identical with that of the person who should have signed. Thus, if a bill of exchange is payable to A B, or order, and it comes to the hand of a person named A B who is not the payee, and who fraudulently endorses it for the purpose of obtaining the money, this is a forgery.” (United States v. Long, 30 Fed. Rep. 678). Where an endorsement is made for the purpose of being fraudulently used as the endorsement of another person, it is falsely made. The falsity of the act consists in the intent that the endorsement shall pass and be received as that of some other party; and, in such case, the charge of forgery can be maintained, although the signature is of a name, which might lawfully be used by the person, who put it on the draft or bill of exchang'e. (Commonwealth v. Foster, 114 Mass. 311).
In People v. Peacock, 6 Cow. 73, where certain coal was consigned to George Peacock of New York, and arrived there, and was claimed by another of the same name, who resided in the same city, but was not the true consignee; and he, knowing this, obtained an advance of money on endorsing the permit for the delivery of the coal with his own proper name, it was held that this was forgery.
Nothing is better settled than that a forged endorsement does not pass title to commercial paper negotiable only by endorsement, and does not justify the payment of such paper. Here, whether the endorsement of the payee’s name was technically a forgery, or was merely a spurious and false endorsement, in either case it was inoperative to change the title to the instrument. (Graves v. American Exchange Bank, 17 N. Y. 205). In Graves v. American Exchange Bank, supra, it was held that the drawee of a bill of exchange is bound to ascertain that the person to whom he makes payment is the genuine payee, or is authorized by him to receive it; that it is no defense against such a payee, that the drawee, in the regular course of business with nothing to excite suspicion, paid the bill to a holder in good faith and for value under an endorsement of a person bearing the same name as the payee. There it was said by the court: “The defendants, on whom the draft was drawn, paid it upon the endorsement of another Charles F. Graves, residing at or near LaSalle, who wrongfully took it from the post-office at Mendota. Such a payment, although made in good faith, did not divest or impair the title of the true owner, who had not seen or endorsed the paper.”
In Mead v. Young, 4 Term Rep. 28, the action was brought by the endorser of a bill of exchange against the acceptor, the bill having been drawn by one Christian on the defendant in London, payable to Henry Davis or order; and, having been put into the foreign mail enclosed in a letter from Christian, it got into the hands of another Henry Davis than the one in whose favor it was drawn; the defendant accepted the bill, and it was discounted by the plaintiff; it was held, that it was competent for the defendant to prove that the person, who endorsed to the plaintiff, was not the real payee, though he was of the same name, and though there was no addition to the name of the payee on the bill; and it was also held that, if a bill of exchange payable to A or order got into the hands of another person of the same name with the payee, and such person, knowing that he was not the real person in whose favor it was drawn, endorsed it, he was guilty of a forgery. In that case, Ashhurst, J., said: “In order to derive a legal title to a bill of exchange it is necessary to prove the handwriting of the payee, and, therefore, though the bill may come by mistake into the hands of another person though of the same name with the payee, yet his endorsement will not confer a title.” In the same case Bullard, J., said: “I am of opinion that it is incumbent on the plaintiff, who sues on a bill of exchange, to prove the endorsement of a person to whom it is really payable. * * * Now here it is clear, that the endorsement was not made by the same H. Davis to whom the bill was made payable; and no endorsement by any other person will give any title whatever.”
In the case at bar, when the appellant presented the draft for payment to the appellee, the latter had a right to know that the appellant held the draft under a genuine endorsement. When the appellant presented the draft for payment, it had been ascertained that the endorsement was forged, or at all events spurious and false, and was therefore void. No title passed by it, and if the appellee had made payment to the appellant, appellee could have been compelled again to pay the draft to the true owner thereof. Daniel, in his work on Negotiable Instruments, says: “The maker of a note or the acceptor of a bill must satisfy himself, when it is presented for payment, that the holder traces his title through genuine endorsements; for if there is a forged endorsement, it is a nullity, and no right passes by it. And payment to a holder under a forged endorsement would be invalid as against the true owner, who might require it to be paid again. * * * The payor should also satisfy himself of the identity of the holder; for he cannot defend himself against the real payee by showing, that he paid the amount of the bill or note to another person of the same name in good faith and in the usual course of business.” (2 Daniel on Neg. Inst. 4th ed. sec. 1225). So, also, Randolph, in his work on Commercial Paper, says: “Where a bank holds a note or bill for collection under a forged endorsement and collects and pays it over to its principal, it will still be liable to the real owner for the amount collected. * * * So, if a bill is endorsed by another person in the payee’s name and paid to the holder under such endorsement, the payee may recover such payment.” (3 Randolph on Com. Paper, sec. 1469).
It follows from the authorities thus referred to, that the appellant, having no title to the draft, was not entitled to recover the amount thereof from the appellee.
If, without knowledge of the real character of the endorsement of the draft by the supposed payee named therein, the appellee had paid the amount of the draft to the appellant, it could have recovered such amount back from the appellant. This results from the fact that “the endorser contracts that the bill or note is in every respect genuine, and neither forged, fictitious nor altered.” (1 Daniel on Weg. Inst.—4th ed.—sec. 672). Tiedeman, in his work on Commercial Paper, says: “Inasmuch as the endorser also warrants that he has a perfect title to the paper by endorsement, and is liable if his title proves defective, and since no title passes on a forged endorsement, it follows as a necessary consequence that the endorser must warrant the genuineness of the prior endorsements.” (Sec. 259). Randolph, in his work on Commercial Paper, says: “Since the endorser warrants the genuineness of prior endorsements, payment, made by the drawee to an endorser holding under a forged endorsement, may.be recovered from such holder.” (Sec. 1469). It was held in Chambers v. Union Nat. Bank, 78 Pa. St. 205, that the holder of a draft, which is endorsed and passed by him, guarantees the prior endorsements. In Cochran v. Atchison, supra, where a bill was payable to W. W. Owens and one W. W. Owen obtained possession of it and wrongfully endorsed it, it was held that a subsequent endorser could not relieve himself from liability to his immediate endorsee on the ground that the latter was guilty of negligence in taking the paper without the name of the actual payee endorsed thereon, upon the grounds that the endorser guarantees the genuineness of the signature of the payee, and that the difference in pronunciation between Owens and Owen was so slight as not to amount to a variance. The court held generally in that case, that an endorser warrants the genuineness of endorsements on a bill of exchange. If, therefore, it be true that, upon payment of the amount of the draft to appellant by appellee, a recovery could be had by appellee from the appellant of the amount so paid, upon the ground that appellant by his endorsement had guaranteed the genuineness of the previous endorsement by George A. Bent, it would be useless to hold that a right of recovery exists in favor of the appellant against the appellee. To require the appellee to pay an amount, which it could hereafter recover back again, would be an idle ceremony.
Counsel for appellant claims, that'he has a right of action for negligence against the First National Bank of Council Bluffs, Iowa, because of the alleged carelessness of that bank, which was the drawer of the draft, in not mailing it properly to the payee named therein. In other words, it is said that, instead of addressing the letter enclosing the draft to George A. Bent of Chicago, it should have addressed it to George P. Bent of 223 South Canal street, Chicago. We do not deem it necessary to decide, whether or not an action will lie in favor of the appellant against the Iowa bank. This action is against the appellee bank, and it is sufficient to say that, so far as this record shows, the appellee was guilty of no negligence.
The judgment of the Appellate Court, affirming the judgment of the circuit court, is affirmed.
Judgment affirmed.