137 Tenn. 358 | Tenn. | 1916
delivered the opinion of the Court.
The hill of complaint was filed to hold liable the several defendants for the amount of a check, $1,000, drawn in favor of W. D. Bryant and delivered by complainant Figuers in a loan by him of funds purportedly made to one W. D. Bryant and secured by ■ a deed of trust on the lands of the latter.
W. D. Bryant is an ex-Confederate soldier, aged seventy-six years, who resides in Maury county, about eighteen miles from Columbia, the county seat. He owns a farm of about sixty-four acres, of- value from $2,500 to $3,000. Two sons, J. G-. Bryant and E. M. Bryant, both young men of legal age, were members of his family, and the sons and the father stood high in the regard of their community.
J. G. Bryant became involved in sawmilling transactions, and fell into devious practices. There is more than an intimation 'in the record that another person who was in his employ at the time, one Morris, since deceased, was used as an aid in his schemes which involved frauds and forgeries, which schemes proved easier of consummation because of the family’s reputation for probity and because of J. G. Bryant’s own apparent unsophistication. With
Hardin P. Figuers, of Columbia, is one of the leading lawyers of the Middle Tennessee bar, and the author of Figuers’ Chancery Manual. As a part of his practice he loans, to an unusual extent, the moneys of clients. Knowing this fact, J. Gr. Bryant approached Figuers, avowedly in behalf of his father, for • a loan of $1,000 on the farm as security. He was introduced by Embry, a real estate agent of Columbia, and made application for the loan. Fig-uers asked for time within which to investigate tne proposed lender and the title of the land, improvements, etc. His investigation along all lines proving satisfactory, he informed Embry that he could lend the money, and the latter informed J. Gr. Bryant, who returned to the city to close the deal.
Figuers took notes for use in the drafting of the deed of trust, and asked J. Gr. Bryant for the name of his mother. The reply, falsely given, was that she was dead. Bryant then informed Figuers that he had an interest in the land by purchase from his father, hut that no deed had been executed to him for it, and that perhaps he (J. G. Bryant) ought to join in the execution of the deed of trust, and it was so drawn. However, the loan, as first proposed and as finally closed, was made to W. D. Bryant as record owner of and on the security of the farm.
When these were delivered to Piguers and he had seen to the registration of the trust deed, he delivered to J. G. Bryant his check on the Maury National Bank, of Columbia, for $1,000. A short time thereafter Embry called Piguers on the telephone and was out of humor because his commission of $14 had not been retained by Piguers out of the loan sum. Later, Embry and Bryant went to the office of Piguers, and the latter at Bryant’s request filled out a check of $14 for Bryant to'sign, drawing it on the Phoenix National Bank in favor of Embry as payee. Piguers
Such a deposit of that check to the account of the father either had been made or was about to be made by J. G. Bryant, who assumed the authority to indorse the name of W. D. Bryant. In fact W. D,. Bryant had no knowledge of or participation in any of these transactions. J. G. Bryant merely used his name and credit as 'means of imposing on the notary, the attorney, and the bank.
The Phoenix Bank accepted such indorsement in the name of W. D. Bryant, the cashier having “very slight acquaintance” with the son, but knowing him to be one of the Bryant boys. J. G. Bryant after signing his father’s name as indorser, affixed his own, “J. G. Bryant.”
The Phoenix Bank indorsed the check, setting forth “indorsements guaranteed,” and collected the fund from the Maury Bank thereon.
J. G. Bryant for years saw to it that the interest on the $1,000 note was paid annually, but finally allowed default and departed the state. When the truth as to his forgery developed, Figuers filed the bill of complaint against the notary for negligence in the taking of the acknowledgment, and also against the two banks.
The Maury Bank filed a cross-bill, seeking to hold liable the Phoenix Bank on the latter’s guaranty of
Other facts will- be recited in the body of the opinion in the discussion of the questions of liability and defense.
I. As to the liability of the defendant notary public to complainant because of the false certificate:
A lengthy discussion by counsel is entered into in regard to the nature of an act performed by a notary public in taking a single person’s acknowledgment — whether ministerial or quasi judicial. That may be here treated as a thing quite aside, as we think that the taking of the acknowledgment in this case was clearly so far ministerial as that the notary may be held to respond under his bond for negligence, if any there be.
By the provisions of Code (Shannon), section 3769, if a clerk who takes the acknowledgment of a deed fails to discharge the duties required of him, he shall be liable to the party injured for all damages he may sustain; and a notary public is likewise liable since by Act 1870, chapter 71, they are empowered to take acknowledgments “in the same manner and under the same rules and regulations as govern county court clerks” under existing laws. Code (Shannon), section 3714.
Counsel for complainant have undertaken to assimilate completely the notary to such clerk and to
The common law and the statutory, measures of diligence to he observed by a notary are thus correctly stated and contrasted in 1 Corp. Juris, 903:
“Where there is no statute prescribing the manner in which the officer shall ascertain the acknowledger’s identity, he is held to .the care and diligence of a reasonably prudent man; but he is not an insurer of the truth of his recitals. Where, however, it is prescribed by statute that if the officer does not personally know the acknowledger to be the person decribed in the instrument, his identity must be. established by sworn witnesses, the officer acts at his peril in making the certificate on the strength of a mere introduction or anything short of the evidence required by the statute.”
We need not decide whether a notary is within .the purview of the Code section (3722) thus relied on. and therefore governed by a statutory standard more
The functions of a notary public are not to be lightly assumed; the amount of the bond required of him ($5,000) should indicate as much to one who proposes to perform the duties of the office. Á certificate of acknowledgment is an act which must in the nature of things be relied on with confidence by men of business. Those buying or 'taking security by way of liens on real estate ought not to be required to look with suspicion on such a certificate or compelled to make proof of its recital as to the notary’s personal acquaintance with the,acknowl-edger.
“Personally acquainted with” in such a certificate means a knowledge independent and complete in itself, and existing without other information. Kelly v. Calhoun, 95 U. S., 710, 713, 24 L. Ed., 544.
The phrase imports more than a slight or superficial knowledge. 1 Corp. Juris., 904, and cases cited.
“It is one of the most important requirements — as a protection 'against fraud — contained in the formula prescribed by the statute.” Fall v. Roper, 3 Head. (40 Tenn.), 485. And see Willingham v. Potter, 131 Tenn., 18, 173 S. W., 434.
The law warns a notary, when he has not personal acquaintance with the bargainor, that he must exercise care to prevent imposition, since the effect of that imposition does not end with his own deception,
The notary does not claim that he made any inquiry as to the identity of the one who pretended to be W. D. Bryant at the time of the taking of the acknowledgment involved in this suit. That acknowledgment was taken and certified on September 17, 1909. His claim is that on April 9, 1909, he fiad been called upon to take the acknowledgment of W. D. Bryant, J. G-. Bryant, and E. M. Bryant to a distinct instrument — a, mortgage on personalty purporting to be signed by the three Bryants to secure a loan obtained from Judge W. B. Turner. That mortgage it developed was also forged so far as old man Bryant was concerned. But the notary’s insistence is that a stranger (perhaps Morris) was introduced to. him as J. G. Bryant’s cousin, W. D. Bryant, who was desirous of joining in the execution of the Turner mortgage; and, as he knew the two Bryant boys by sight and justifiably deemed them to be of good standing, it was not negligence on his part to take the acknowledgment of the stranger. Further, that on the faith-.of that introduction it was not required of him that he make further inquiry when later the Figuers trust deed was presented by J. Gr. Bryant and the stranger.
It is next urged in behalf of the defendant notary that his negligence in relation to the acknowledgment and certificate was not the proximate cause of the loss. But for the certificate and its recitals, however, the funds would not have been parted with by Figuers, who relied on same as the law justified
II. As to the rights of complainant against the Maury Bank:
The governing principles are well settled. If a drawee bank pays a check to which the payee’s name is forged, as indorser, the payment is deemed to be one made out of its own funds, and not the deposit- or’s provided the drawer has not been guilty of some •negligence or fault that misled the bank. Pollard v. Wellford, 99 Tenn., 113, 42 S. W., 23; Farmers’, etc., Bank v. Rutherford Bank, 115 Tenn., 64, 88 S. W., 939, 112 Am. St. Rep., 817; Shuttle Co. v. Nat. Bank, 134 Tenn., 379, 183 S. W., 1006, and cases cited. 7 Corp. Juris, 686.
III. As to the right of complainant to recover of the Phcenix Bank:
The claim of right to recover directly of the Phcenix Bank is by complainant based on the case of Farmer
In 1 Morse on Banks and Banking, section 248, it is said:
“If a negotiable instrument, having á forged in-dorsement, comes into the hands of a hanl-c and is collected by it, the proceeds are held for the rightful owner of the paper, and may be recovered by him, although the bank gave value for the paper, or has paid over the proceeds to the party depositing the instrument for collection.”
Ordinarily such true owner is the payee, but in the circumstances of the instant case it might be, at his election, complainant Figuers who drew it and parted with it by reason of vitiating fraud; and had complainant’s suit been against the Phoenix Bank alone, based on this theory and the particular facts of this case, he would have been entitled to recover, it seems.
A difficulty arises, however, in this: Complainant has sued the Maury Bank in the'same bill of complaint, and takes a recovery against that bank on the theory, necessarily, that that bank did not pay out the fund as his, but on the contrary parted with its own money. Holding to this relief, he asks to be treated as the true owner of the fund that passed
Fortunately, there is no necessity therefor, since there is no sort of doubt on this record as to the abundant solvency of the Maury Bank, which is held to respond to complainant, and which in turn must be given its own remedy against the Phoenix Bank.
IV. As to the rights of the Maury Bank against the Phoenix Bank:
A drawee bank.which pays out money on a forged indorsement may recover it from the bank which received the proceeds, if the paying bank is to be loser otherwise, in consequence of the forgery. People’s Bank v. Franklin Bank, 88 Tenn., 299, 12 S. W., 716, 6 L. R. A., 724, 17 Am. St. Rep., 884. And more manifestly so where, as here, the receiving bank has guaranteed the indorsement that turns out to be forged. 7 Corp. Juris., 692. The chancellor’s decree in favor of the Maury Bank under its cross-bill was correct.
V. As to the right of set-off claimed by the Phoenix Bank against the Maury Bank:
The Phoenix Bank claims that it should not account to the Maury Bank for the full amount of the $1,000 check because the latter bank received out of the
It appears that among the checks paid hy the Phoenix Bank out of the $1,000 deposit was one drawn as follows:
“Phoenix National Bank: Pay to the order of the Maury National Bank $325.00, three hundred and twenty-five dollars, for borrowed money.
“[Signed] "W. D. BryaNt.”
This check was indorsed by stamp as follows:
“Clearings for Sept. 22, 1909, indorsements guaranteed, Maury National Bank.”
On this indorsement and presentation $325 passed out of said deposit into the Maury Bank. This check was not signed by W, D. Bryant, or even by J. Gr. Bryant, but probably by Morris.
An indorsement in blank does not have the effect to warrant or guarantee the genuineness of the signature of the maker of the check to the drawee bank — the Phoenix Bank. Farmers’ & Merchants’ Bank v. Bank of Rutherford, 115 Tenn., 64, 71, 88 S. W., 939, 112 Am. St. Rep., 817. And the express contractual guaranty stamped on the check went no further. State Bank v. Cumberland, etc., Co., 168 N. C., 606, 85 S. E., 5, L. R. A., 1915D, 1138.
The law-imposed warranty, embodied in the Negotiable Instruments Law, section 66, does not riin in favor of the drawee in respect of the genuineness of
What was indicated in Farmers’ & Merchants’ Bank v. Bank of Rutherford, supra, as the true measure of the duty and liability of the drawee bank which pays a check upon the forged signature of its customer, appears now to be the rule in several jurisdictions, under the construction given to the Negotiable Instruments Act, section 62, which provides that the acceptor of a negotiable instrument admits “the existence of á drawer, the genuineness of his signature, and his capacity and authority to draw the instrument.” Title Guarantee & T. Go., v. Raven, 169 N. Y., 487, 89 N. E., 1082, 1085, 25 L. R. A., (N. S.), 1308, 17 Ann. Cas., 1131; Cherokee Nat. Bank v. Union Trust Co., 33 Okl., 342, 125 Pac., 464; First Nat. Bank v. Bank, 59 Or., 388, 117 Pac., 293; Crawford Ann. Neg. Inst. Law, 120, and cases cited. This enactment is said to be merely declaratory of the common law, as announced by Lord MaNsfield in the leading case of Price v. Neal, 3 Burr., 1354, by the supreme court of the United States in Bank of U. S. v. Bank of Georgia, 10 Wheat., 333, 6 L. Ed., 334, and by the court of appeals of New York in National Park Bank v. Ninth National Bank, 46 N. Y., 77, 7 Am. St. Rep., 310, which held that it is in-
But the Maury Bank did not fail to attain the status of a holder for value because it was the payee named in the check, and not an indorsee on purchase or discount. Farmers’ & Merchants’ Bank v. Bank of Rutherford, supra; Liberty Trust Company v. Tilton, 217 Mass., 462, 105 N. E., 605, L. R. A., 1915B, 144; Armstrong v. American Exchange National Bank, 133 U. S., 433, 10 Sup. Ct., 450, 33 L. Ed., 747; Crawford Ann. Neg. Inst. Law, 96.
The fact that the Maury Bank accepted the check in payment of a pre-existing debt did not have the effect to deny to that bank the status of a holder for value, since by section 25 of the act an antecedent or pre-existing debt constitutes value.
We hold that the Phoenix Bank is not entitled to credit on the liability sum for the check of $325, or for any other check of like nature.
VI. As to the defenses to complainant’s demand urged by the two banks:
(a) An argument on analogy is predicated by the solicitors of the two banks upon the rulings in many cases to the effect that the drawer of a check made payable to an imposter cannot recover of a drawee, or intermediate, bank, on the ground that such bank, in paying the check on the indorsement of the imposter under the assumed name, but carries out the actual intention with which the drawer issued the check, although that intention was induced by the fraud of the imposter in representing that he was another person, whose name he assumed.
But the authorities appear to be harmonious in holding that this doctrine of payment according to the actual intent of the drawer of a check is not applicable where the impostor does not assume the name by which the payee is described in the check, but pretends merely that he is agent of such described payee in receiving and indorsing the check. In such case the holdings of the courts have been that as
This distinction is taken by those courts which apply the doctrine of actual intention where the imposter assumes to be the very person described as payee, when it comes to dealing with a case where the imposter merely assumes to be the agent of the one named as payee of the check.
In Goodfellow v. First Nat. Bank, 71 Wash., 554, 129 Pac., 90, 44 L. R. A. (N. S.), 580, the two rules were contrasted:
“But this principle is not applicable in the instant case. Here the check was made payable to the order of an existing person in whose name the title to the property covered by the mortgage stood, and it was delivered to Peeples as the agent of Mrs. Barnes. In such a case the drawer does not vouch for the right of the agent, or any other unauthorized person to indorse the name of the payee upon the check.”
The hazard of ascertaining for itself the fact of the existence of authority in the person who asserts the power to indorse such a check or to receive or check out the funds, as its product, is imposed upon
The Maury Bank, as drawee, does not claim that it was caused to honor the check so indorsed by any negligent act of Mr. Figuers that immediately operated on it.
However, the Phoenix Bank does put forward such. a claim on. its part, and the Maury Bank joins it in urging the validity of the defense as one that shields ■ both' banks from liability. This effort. to dovetail the defenses of the banks is based upon language used in Central Nat. Bank v. Nat. Metropolitan Bank. 31 App. D. C., 391, 17 L. R. A. (N. S.), 520. Without passing on the soundness of that phase of the decision so relied on, we go to an examination of the asserted negligence of the drawer of the check.
The claim is that on the same day that Figuers• issued the cheek representing the loan sum, he wrote out for Bryant at his request a small check for $14, above referred to, on the Phoenix Bank, in which bank the principal check had been or was to be deposited by Bryant. This check for $14 was drawn in favor of Embry, the real estate agent who had .commissions in that amount for services in procuring the loan. When Figuers had written out the body of this small check, J. G. Bryant signed it “W. D. Bryant.” This
It is insisted by the banks that the proof establishes the fact that when J. G. Bryant went to the Phoenix Bank he was accompanied by Embry, and that both of these checks were presented to the cashier of the bank at the same time. The record shows this last question of fact to be a close one. Without deciding it, let it be assumed, for test purposes, that the cashier is correct in his rendition of the circumstances, and that when he . accepted the deposit of the principal check under, the indorsement of W. D. Bryant’s name by J. G. Bryant, he saw that Figuers had written the interpreting words “W. D. Bryant” below the signature on the $14 cheek; Did this fact fairly tend to mislead the bank’s officer, as an act of negligence on Figuers’ part?
Pulton, the cashier., testified as follows on this phase of the case:
The $1,000 check was handed the cashier by J. G. Bryant, with instructions to place the same to the credit of W. D. Bryant. Fulton asked J. G. Bryant whether “he expected to check against his father’s account” and he said that he did. He was then informed by Pulton that he could not do this without written evidence from W. D. Bryant, it being explained that a man could open an account for another man by placing his money to his credit, but the fact
We fail to see in this, if true, any vouching by Figuers as to the existence of authority on the part of the imposter, J. G. Bryant, to indorse the principal check or to draw out the funds by signing his father’s name to checks on the Phoenix Bank. We also think there was no negligence in Figuers undertaking to interpret the name “W. D. Bryant” that could justify Fulton in not making inquiry to govern his dealing with the much larger fund of $1,000. Further, Fulton did not do so. He accepted the assurance of his kinsman standing by, which assurance went directly to the mode of checking out the fund. That matter of checking out the fund, and -not any risk involved in the matter of taking J. G. Bryant’s indorsement of W. D. Bryant’s name of the $1,000 check, was what gave the cashier concern, and he was quieted as to that matter'by the remark of Embry, whose interest in collecting the $14 check must have been apparent. We cannot see that either of the banks was led by any act of Figuers to rely upon the imposter as one having authority to deal with the principal check or the fund. Goodfellow v. First Nat. Bank, supra.
In such case, where there is no sufficient reason to suspect indorsement by means of a forged signature or payment to a wrong person, duty does not require the drawer to scan his charged-up cheeks, returned by the bank, for the purpose of discovering any diversion. Murphy v. Metropolitan Nat. Bank, supra, and notes to Morgan v. U. S. Mortgage & T. Co., L. R.A., 1915D, 748, and Ann. Cas., 1914D, 465. Complainant had a right to rely upon the bank’s exercise of care in respect to ascertaining the authority of J. Gr. Bryant to indorse the name of W. D. Bryant.
By no pleading are we called upon to decree as to the order of liability of the several defendants, and we do not do so further than is necessarily indicated by the ruling in favor of the Maury Bank against the Phoenix Bank.
The decree of the chancellor will be modified so as to deny a recovery in favor of complainant against the Phoenix Bank, and so as to make the judgments against the notary public - and the Maury Bank