100 Ala. 476 | Ala. | 1893
The plaintiff, Allen, a depositor sued to recover money which had been paid by the defendant bank upon checks to which plaintiff’s name had been forged, by his clerk Tomlin. The forgeries covered a period extending from about the 5th of September, 1890, to March 4th, 1891, at which latter point of time the forgeries were first actually known to the depositor. It was a rule of the bank about once a month, to post up the depositor’s pass book and render him a statement, showing the deposits and checks and the balance. This rule was observed regularly in this case, and the forged checks, with other vouchers, were delivered to the depositor monthly from September 1890, to March 4th, 1891, with his pass book. The material defense of the defendant is stated in its special pleas marked D and E, the former of which, after stating the rule of the bank and the rendition of the monthly statement, and facts to show it acted with due care, avers 'that the plaintiff was negligent in his duty in not making proper examination of the monthly accounts rendered the plaintiff, and vouchers, which would have led to the discovery of the forgeries, and prevented the consequent loss to defendant. The latter plea (E) avers substantially that defendant was furnished with the means in the pass book and vouchers to detect the forgeries, and was so chargeable with notice thereof, and a neglect of duty on the- part of the plaintiff to the defendant in not discovering the forgeries and informing the defendant, in time to prevent the successful repetition of forgeries and subsequent loss to defendant.
It will be seen from this statement of the pleadings that the defendant received the benefit of the principle of law invoked by the defendant in pleas L and E, that a depositor owes a duty to the bank to examine within a reasonable time and with due care, the account rendered in the pass book and the vouchers returned by the bank to the depositor. We will refer to this principle again. As the court found for the plaintiff it must have found that the plaintiff, under the facts, was not negligent, and was not chargeable with knowledge of the forgeries in time to have prevented loss to the defendant, in consequence of forgeries perpetrated, after the return of prior forged checks to the depositor with his pass book.
Were the conclusions of the court authorized by the evidence ? If as matter of law, as is insisted by the plaintiff, Allen, that the depositor owed no duty to the bank to examine the vouchers, then the conclusion of the court must be sustained, upon this principle, however negligent the depositor may have been in his examination of the pass book and vouchers. On this proposition the authorities are not in harmony. The case of Weisson v. Dennison, 10 N. Y. 69, may be considered as an authority, sustaining the proposition that a depositor owes no duty to the bank, in the matter of the examination of the pass book and vouchers. In the same line, but not so positive, maybe cited Welsh v. German American Bank, 73 N. Y. 424; Frank v. Chemical Bank, 89 N. Y. 209; Manufacturing Bank v. Barnes, 65 Ill. 69.
In the ease of Frank v. Chemical Bank, supra, we observe the court uses this language : “It does not seem to be unreasonable in view of the character of business, and the custom of banks to surrender its vouchers, on the periodical writing up of the account of its depositors, to exact from the latter some attention to the account when it is made up, or to hold that the negligent omission of all examination, may, when injury has resulted to the bank which it would not have suffered, if such examination had been made, and the bank had received timely notice of objections, preclude the depositor from afterwards questioning its correctness.” In a yet later case Shipman v. Bank. 126 N. Y. 318, by a careful reading, it will be seen, that while the court held to the rule, that the bank must know the signature of its depositors and must ascertain at its peril that the payee has in fact
The case of Dana v. National Bank, 132 Mass. 156, was one in which one Piper the clerk of the plaintiff, erased the name of the payee and inserted the name of “bearer” and himself received the money. This check was returned with the pass book and monthly statement as a voucher. The court uses this language: “The plaintiffs owed to the defendant the duty of exercising due diligence to give it information that the payment was unauthorized, and this included due diligence not only in giving notice after knowledge of the forgery, but also due diligence in discovering it. If the plaintiffs knew of the mistake, or if they had that notice of it, which consists in the knowledge of facts, which by the exercise of due care and diligence will disclose it they failed in their duty; an adoption of the check and ratification of the payment will be implied.” And in the case of Weinstein v. National Bank of Jefferson, 69 Texas, 38; 5th Am. St. Rep. 23, the rule was distinctly recognized, that if loss or injury resulted to the bank in consequence of the negligence of the depositor to examine the account and vouchers within a reasonable time which duty if performed would have led to the detection of forged checks, and prevented the loss, such neglect of duty was available to the bank in a suit by
Does the evidence show such omission of duty on the part of the plaintiff, as to make him liable, and did loss result proximately to the defendant from such omission? The evidence shows that on each occasion after the return of the pass book and checks, the plaintiff with the assistance of his clerk Tomlin, the forger, examined the account as rendered and the checks or vouchers. We may conclude the evidence shows that the plaintiff himself personally was without fault in this respect, and but for the fact that his clerk Tomlin was the forger, the false checks would have been discovered by the examinations which were in fact made. The evidence shows that in these examinations Tomlin either called from the pass book and the plaintiff the checks or vice versa, and Tomlin knowing when a forged entry or check was reached answered in such a way as to deceive the plaintiff. Tomlin the clerk and forger had knowledge of the forged checks; was such knowledge of the agent chargeable to his principal?
The case in 132 Mass. supra, holds that the principal is chargeable with notice under such circumstances, and we are of opinion, the conclusion is supported by reason and sound principles of law.
It is clear that in forging the checks, Tomlin did not act within the scope of his authority but upon what principle can it be said, that in the matter of examining the passbook and vouchers, he was not acting within the scope of his authority ?, He was appointed and directed by the plaintiff to do this very thing. If Tomlin had Rot been the forger and in no manner interested in concealing the forgeries, and, in making the examination of the pass book and vouchers, had
By others under like circumstances the doctrine of estoppel has been applied, and the depositor held to be estopped from asserting a claim to the money paid on the forged checks. We do not think that either the doctrine of ratification or estoppel can be applied as a just and equitable principle in all cases. Ratification refers to a past act or transaction, and as now being considered refers to the unauthorized act of an agent, or the adoption of a past act or transaction as his own act, made or executed by another who
An account rendered, to which no objection is made after a reasonable time allowed for examination will be held in law as prima facie correct, but the presumption may be overcome by proof, either when the debtor is sued upon the account, if there is an error to his prejudice, or by the plaintiff by suing for the proper amount. An action for money had and received is not barred in this State until six years have expired, and up to that time a stated account is open to rectification upon proof. Neither will the fact that the bank has by mistake omitted, from the account rendered and vouchers returned, a proper charge, prevent the bank within any reasonable time, from correcting the error, and recovering back the omitted check, no injury having resulted to the depositor. Although a depositor may have failed in
These principles of law apply in the present case to the forged checks which -were paid by the bank in the first instance, and before the plaintiff was chargeable with knowledge of the forgery. Their application violates no established rule of law, gives neither an undue advantage of the other, and holds both responsible for the obligations growing out of their respective relations to each other.
The evidence shows that several checks were forged by Tomlin and paid by the bank subsequent to the time that Allen the plaintiff was chargeable with notice that his clerk was making such unauthorized use of his name. As to all such subsequent payments of forged checks the bank is entitled to invoke the equitable doctrine of estoppel. As to these it may be fairly said the bank was induced to pay and did pay in coffsequence of the silence of the plaintiff when it was his duty to speak. The bank was misled to its injury, by the fault of the depositor. A very interesting and instructive collection of leading cases on the questions under
We cannot believe from the evidence that if the plaintiff had promptly made known to the bank the forgeries of his clerk, at the time he was chargeable with a knowledge of their existence, the subsequent forgeries could have been successfully carried out. The evidence shows that upon this discovery of the forgery the plaintiff had Tomlin arrested, but his arrest and even his conviction, would not necessarily re-imburse the bank, or exclude the doctrine of estoppel, and as to the subsequently forged checks, we cannot see that the bank wae under any obligation to prosecute the forger. As to the subsequent forged checks the fault was with the depositor.
Our conclusion is the evidence supported the special plea E, of the defendant. We are of opinion the court erred in arriving at the balance of money clue the plaintiff. The evidence is not as clear as it might be made, but as we understand the record it shows that the forged checks, the cause of the present action had been abstracted from the plaintiff’s book, presumably by his clerk, who had access to it, and the vouchers at all times. The plaintiff had a check book with marginal space on which was entered the number of the check, the name of the payee, the amount of check and date, and when the check was taken off, the stub showed these memoranda, and plaintiff testified that he was careful in every instance before signing the check, to see that it corresponded with the stub. The balance against the bank was ascertained by charging to the bank payments made on checks, for which there were no corresponding amounts entered on the stub of plaintiff’s check book. Under the evidence in this case, we do not think this was sufficient data upon which to base a charge, for the following reasons : Tomlin introduced as a witness by plaintiff, testified “that he frequently filled out the stubs, and also the checks for plaintiff’s signature, but that he, Tomlin, had no authority to sign plaintiff’s name ; that several times in attempting to sign plaintiff’s name he had not made what he considered a skilful forgery, and he destroyed such checks without uttering them, and that the stubs corresponding with such checks were left in the check book filled out.” “That sometimes when he committed a forgery he wrote the stub for one amount and the check for a different amount.” It seems that neither the plaintiff, nor the witness Tomlin, by an examination of the stub of the check book could point out the instances in which forged checks were uttered.
Only one other question remains to be considered. The defendant took some of the checks found on the person of Tomlin, and which were forgeries, and others admitted to be genuine, and arranged them, so that nothing but the signatures of the drawer could be seen, and plaintiff was requested to point out the genuine and false checks. The plaintiff objected to this evidence and the court sustained the objection. We think this testimony admissible. It is a circumstance that the jury or court should consider in weighing his evidence. The inability of the plaintiff to distinguish the true from the false signatures would not be conclusive against him. He might be able to show by other evidence that certain checks were forged, although he could not himself determine the question by an examination of the signature. Doubtless in many cases a person’s name is so skilfully forged, that he could not distinguish it from his
Eeversed and remanded.