49 A.D. 349 | N.Y. App. Div. | 1900
This action was brought to recover the amount of a draft drawn by the First National Bank of Denver, Col., on the defendant, payable to the order of A. W. Hudson.
The complaint alleged the execution and delivery by the drawer of the draft to A. W. Hudson, the payee; the indorsement, for value, by him to the plaintiff; acceptance by defendant; presentation for and refusal of payment, and protest for non-payment.
The answer admitted the making of the draft, acceptance, and defendant’s subsequent refusal to pay. It denied the delivery to, and indorsement by, the payee, and plaintiff’s ownership. It then alleged, in substance, that Lenora N. Bosworth, intending to pay to one Olive K. Hudson, the owner of certain real estate at Denver, Col., or to her husband and agent, A. W. Hudson, the sum of $2,500, purchased from the First National Bank of Denver, Col.,
At the trial there was little or no dispute as to the facts. It there appeared that a few days prior to the 5th of February, 1897, a stranger called upon one Thomas Fitzgerald, a real estate broker in the city of Denver, Col., and inquired of him if a loan could be obtained upon certain real estate in that city, of which one Olive K. Hudson, who resided with her husband, A. W. Hudson, at Colorado — about 250 miles from Fort Worth—in the State of Texas, held the title. In answer to the inquiry, Fitzgerald said that one Lenora H. Bosworth would loan from §2,000 to §2,500. This stranger then informed Fitzgerald that the Hudsons were in or near Fort Worth, Texas, and if he would give him his card he would forward it to them and they would communicate direct in reference to the loan. A few days thereafter Fitzgerald received from Fort Worth, Texas, what purported to be a letter from A. W. Hudson — reference being there made to the card previously obtained ■— in which an application was made for a loan of §2,000 or §2,500 upon the real estate owned by Olive K. Hudson in the city of Denver. Considerable correspondence passed between Fitzgerald and the person signing his name A. W. Hudson, at Fort Worth, the result of which was that Mrs. Bosworth, through Fitzgerald, agreed to loan upon this real estate §2,500. A note for §2,500 and a trust deed or mortgage, as collateral security for the payment of this sum, were prepared by Fitzgerald, and by him forwarded by mail to A. W. Hudson, at Fort Worth, for execution. Shortly thereafter the First Rational Bank of Denver received from Fort Worth a letter signed A. W. Hudson, inclosing a note which purported to be signed by Olive K. Hudson and A. W. Hudson, and a trust deed signed by Olive K. Hudson, instructing it to notify Fitzgerald that the note and mortgage had been sent to it for collection, and to deliver the same to Mrs. Bosworth upon her paying to the bank the sum of §2,500, less Fitzgerald’s commissions and the expenses incurred in examining the title,
Upon the foregoing facts, both parties having moved for the
We are satisfied that the ruling of the trial court is right. The plaintiff, in good faith and for value, purchased the draft from the person to whom it was sent, and for whom it was intended, and it thereby acquired a good title. The fact that Mrs. Bosworth had, by a trick or device, been induced to part with her money for a worthless note and mortgage does not in the least affect the question. Suppose Hudson, instead of operating through the Denver bank, had gone to Denver and had there met at the bank Fitzgerald, Mrs. Bosworth and her attorneys, and he had there personally produced the note and mortgage, and Mrs. Bosworth, in exchange for them, had given him her check on the Denver bank, which he then and there had presented to the bank for payment and the same had been paid, would not the bank be protected ? Manifestly, because it would have acquired the title to the check from the person to whom Mrs. Bosworth delivered it and to whom she intended to give the title. It is unquestionably true, as contended by the defendant’s counsel, that Mrs. Bosworth supposed she was dealing wich the husband of Olive K. Hudson, but this does not alter the fact that she, in exchange for the note and mortgage, gave her money to the bank, which the bank intended to, and did, remit, by the draft in suit, to the person at Fort Worth calling himself A. W. Hudson. That person received it and transferred it to this plaintiff, who, as I have already said, received it in good faith and for value, and it thereby acquired good title. (Robertson v. Coleman, 141 Mass. 219; Forbes & King v. Espy, Heidelbach & Co., 21 Ohio St. 474.)
The indorsement was not forged. On the contrary, it was indorsed by the person in whose favor it was drawn. Nor was the Denver bank deceived in any way. It delivered the note and trust deed to Mrs. Bosworth, received her money and drew and sent, as directed, the draft to the identical person who indorsed it. No deception was practiced upon the bank. It was not cheated or defrauded in any way. It is true, Mrs. Bosworth was defrauded into making a loan upon a worthless mortgage and note, but that
In principle, this case is much like Robertson v. Coleman (supra). There, a person went to a hotel in the city of Boston and registered under the name of Charles Barney, and on the day he arrived, or the day following, he took to the place of business of the defendant — who sold property as an auctioneer — a horse and carriage, of which he represented himself to be the owner, and which he requested the defendant to sell for him. He gave his name as Charles Barney. The defendant there, believing him to be the person by that name who lived at Swanzey, sold the horse and carriage and gave him a check in payment. The check was made payable to Charles Barney. The person to' whom it was delivered indorsed it under that name, delivered it to the hotelkeeper in payment of his hotel bill, and received the balance in cash. Shortly thereafter the defendant ascertained that the horse and carriage had been stolen, and the bank, by his direction, refused to pay the check. There it was made to appear that Charles Barney was not the -true name of the person who received the check, and that he had never gone by that name before registering at the hotel. In an action to recover the amount of the check, the court held: “ That although the defendants may have been mistaken in the sort of man the person they dealt with was, this person was the person intended by them as the payee of the check, designated by the name he was Called in the transaction, and that his indorsement of it was the indorsement of the payee of the check, by that name. The contract of the defendants was to pay the amount of the check to this person, Or his order, and he has ordered it paid to the plaintiff. If this person obtained the check from the defendants by fraudulent repre
It is well settled that if one of two innocent parties must suffer,, by the act of a third, he who enables the third party to do what he-did must sustain the loss. (Rawls v. Deshler, 4 Abb. Ct. App. Dec. 12 ; Mc Williams v. Mason, 31 N. Y. 294.) We think this principle is applicable here. Mrs. Bosworth, without knowing the signature of either Olive K. Hudson or that of her husband, without making any examination or taking any precaution to ascertain whether the signatures to the note and mortgage were forgeries, paid to the bank the amount of money called for, and the hank did just what it was obliged to do — forward to the person who sent the note and mortgage to it, a draft payable, as directed, to the order of that person — A. W. Hudson. That person received it; that person indorsed it, and upon that indorsement it was acquired by the plaintiff for value, and it did not thereafter lie in the power of Mrs. Bosworth, the Denver banjk, or any one else to prevent the plaintiff from realizing upon it.
In reaching this conclusion, the authorities cited by defendant’s counsel have not escaped our attention. They have been considered, but they do not seem to be in point. They relate mostly to forged indorsements or to the liability of common carriers.
It follows 'that judgment for plaintiff must he ordered upon the verdict, with costs.
Van Brunt, P. J., Barrett, Patterson and O’Brien, JJ., concurred.
Judgment ordered for plaintiff on verdict, with costs.