204 Mass. 146 | Mass. | 1910
These are two actions, depending upon similar facts, to recover for money had and received by the several defendants to the plaintiff’s use. They grow out of the embezzlement of the plaintiff’s moneys from time to time by its city treasurer, as it is shown in Newburyport v. Fidelity Ins. Co. 197 Mass. 596. The principal difference between the facts of that case and the facts of the present case is that in that case the checks were made payable to the order of the defendant’s cashier, while in the present cases they were made payable to the order of James V. Felker, who was the city treasurer, who signed the checks in his official capacity. In all the cases the checks appear on their face to be drawn on the account of the plaintiff city by its official representative, and they were received by the defendant in payment of a personal debt of the treasurer, and afterwards deposited in the defendant’s bank account and collected in the usual way. The cases come to us on a report in which it is stated that the facts afterwards recited “ appeared in evidence.” These facts must be treated as agreed
The defendants contend that the bank could not legally pay the checks, and that the plaintiff’s money in the bank was not diminished by the payment, and the plaintiff was not damaged, as the bank is still accountable for the deposit as if the checks had not been drawn. This contention rests upon the view that if the bank could not properly make the payment, the plaintiff could not treat it as having passed the money to the defendants, and cannot maintain an action against them for money had and received. This view is combated by the plaintiff, which contends that, even if the payment was made by the bank without authority, the plaintiff still may elect to follow the money. In support of this doctrine it cites Van Dyke v. State, 24 Ala. 81, Whitton v. Barringer, 67 Ill. 551, and Bolles’ Modem Law of Banking, 614, 615.
We do not find it necessary to pass upon this question, for we are of opinion that, upon the facts before us, it does not appear that the payment by the bank was made improperly. On this point the defendants contend, first, that these checks were made without authority, and should be treated as if the signature of the drawer had been forged. They rely upon an ordinance of
The charter of the city of Newburyport (St. 1851, c. 296, § 8) which provides for the election of the city treasurer, contains nothing different from the general law in regard to his duties. We have discovered no different provision in any amendment of the charter. The provision in the same section that “ the city council shall take care that money shall not be paid by the treasurer unless granted or appropriated,” relates to payments such as are referred to in the ordinance, and does not assume to interfere with the custody of the money by the treasurer. It is said in the statement of facts in Newburyport v. Fidelity Ins. Co., ubi supra, that “these bank accounts were established under the authority of the city, and the form of the checks likewise was adopted by the authority of the city.” But there is nothing to show that the form of the checks requires the signature of the mayor or city clerk upon them, and, in the absence of anything to the contrary, it must be assumed that, by virtue of his official authority the treasurer could control the custody of the money and draw necessary checks for that pur
Nor was the fact that the checks were payable to the order of the city treasurer, and indorsed by him, such notice. This was expressly held in Goodwin v. American National Bank, 48 Conn. 550, in these words: “ The law will not charge the officers of a bank with knowledge that a depositor has committed a fraud, nor impose upon them the duty of inquiry, because he has drawn upon a treasurer’s account checks payable to himself or to bearer, or has transferred money from it to his own and from his own to it. They are not required to assume the hazard of correctly reading in each check the purpose of the drawer.” See also Walker v. Manhattan Bank, 25 Fed. Rep. 247, 255; Gray v. Johnston, 3 H. L. Cas. 1, 14. A check in that form is equivalent to one payable to bearer. It is not an unusual form of making a check for a legitimate payment. There was nothing in this form to indicate that it was not delivered in payment of an approved debt of the city. Beyond that, there was nothing to inform the bank to whom or for what purpose it was issued. In the absence of suspicious circumstances the bank had no duty to concern itself with that subject. The presumption is that its arrangement with the treasurer, the official custodian of the city’s moneys, was to pay checks drawn in the form which he was using, without reference to the person to whom they were made payable, so long as there was nothing to indicate that they were not given for a proper purpose. Gray v. Johnston, 3 H. L. Cas. 1, 14. Upon the facts in this report, there is nothing to show that the bank was liable to the plaintiff for an unauthorized payment of any of these checks, or that there is any reason why the defendants should not be accountable for the money which they received with notice that it was paid improperly.
The defense that the defendants were not liable, because they paid the money to others and retained none of it except the amount of their commissions, is not well founded. This also is
Judgment on the verdicts.