379 A.2d 682 | Conn. Super. Ct. | 1977
This action for conversion of a check was brought against the Charter Oak Bank and Trust Company, hereinafter Charter Oak, the depositary bank, and New Britain Bank and Trust Company, hereinafter New Britain, the drawee bank. The plaintiff claims to be a joint payee of the check and asserts that Charter Oak collected the proceeds of the check and New Britain paid the check on a forged endorsement. The trial court, upon motion by the defendants, rendered a judgment of nonsuit for failure of the plaintiff to prove a prima facie case.
We first consider Charter Oak's claim that, in the absence of a finding, there is no basis upon which this court can review the action of the trial court. Under the rules for the appellate session a finding is necessary only when the appellant desires to have reviewed the court's conclusions on the facts of the case. Practice Book 567A. A nonsuit for failure to prove a prima facie case is tested by the evidence. The court finds no facts. An evidentiary *608
nonsuit may enter only "when the evidence produced by the plaintiff, if fully believed, would not permit the trier in reason to find the essential issues on the complaint in favor of the plaintiff." Minicozzi v. Atlantic Refining Co.,
The material allegations of both counts of the complaint are these: On or about December 17, 1971, Newington Associates, hereinafter Newington, issued a check in the face amount of $8000 drawn on New Britain and payable to both Air Conditioning Associates, hereinafter ACA, and the plaintiff. ACA endorsed the check in both names and deposited it in Charter Oak. At no time did the plaintiff authorize ACA or any of its agents to endorse the plaintiff's name on the check. The endorsement of the plaintiff's name on the check was a forgery. The plaintiff, as a joint payee, was entitled to its share of the proceeds of the check. Charter Oak converted the check by collecting the proceeds on a forged *609 endorsement and by wrongfully paying those proceeds to ACA. New Britain converted the check by wrongfully paying it on a forged endorsement.
Upon the evidence taken in the light most favorable to the plaintiff the trier might reasonably have found the following facts: In December, 1971, Newington was the owner and developer of a construction project known as Richard Arms Apartments. ACA was the heating and air-conditioning subcontractor for the project. The plaintiff supplied materials to ACA for this project and others under an open running account. Before the present transaction, Newington had done business with both ACA and the plaintiff and had bought equipment from the plaintiff. Newington did not know of the existence of an entity called "Air Conditioning Associates Equipment Distributors." Newington drew a check on New Britain bank for $8000.2 On the face of the check was the notation "Re: Richard Arms Apartments, Newington, Conn." The check was delivered into the possession of ACA which caused the check to be endorsed.3 Neither ACA nor its agents was authorized by the plaintiff to endorse its signature on the check. Charter Oak accepted the check for deposit as it was endorsed and forwarded it to New Britain for collection. New Britain paid the check and transmitted the proceeds to Charter Oak, which credited ACA's account for the full amount of the check.
From those facts the trier might reasonably have concluded that the plaintiff was a joint payee on the *610
subject check. The absence of the word "and" would not have been controlling. Feldman Construction Co. v. Union Bank,
Even if the trier were to apply the definitions of the forgery statute to the Uniform Commercial Code the result would be the same. The word "forgery" may be applied both to a document and a crime. The forgery statute,
With respect to New Britain, payment of a check on a forged endorsement constitutes a specific act of conversion under
There is error, the judgment is set aside and the case is remanded with direction to deny the motions for nonsuit and then to proceed according to law.
In this opinion D. SHEA and SPONZO, Js., concurred.