56 Neb. 149 | Neb. | 1898
In 1892 one A. M. Swartzendruver lived in Columbus and occupied certain relations with the Nebraska Loan & Trust Company of Hastings. The precise character of these relations is one of the questions in controversy, but it suffices for present purposes to say that he had authority to receive and transmit to the trust company applications for loans on real estate security, and bonds and mortgages securing such loans, and, in some cases at least, to deliver the instruments transmitting the money to the borrower. He transmitted to the company an application for a loan, purporting to be made by one John Baughman, and offering certain described land in Platte county as security. Am abstract was also sent purporting to be made by Becher, Jaeggi & Co., and showing title in Baughman clear of incumbrance. The loan was accepted by the company and Swartzendruver transmitted to it a bond and mortgage, the bond purporting to be executed by Baughman and the mortgage by Baughman and wife. The signatures were in each'in
A large portion of the voluminous briefs is devoted to a discussion of the law with reference to negotiable instruments drawn to the order of fictitious payees, and whether the fictitious character of the payee depends upon the non-existence of the person named or the drawer’s knowledge of his non-existence. An examination of the instructions against which this argument is directed convinces us that they really conform to the plaintiff’s theory of the law in this respect and that they are not open to adverse criticism. On this branch of the case the essential issue made was whether the Baughman indorsement was genuine or forged, not whether such a person as Baughman existed or did not exist. After stating the issues the court gave the following instructions:
“7. From the evidence it conclusively appears that the Loan & Trust Company on the 10th day of August, 1892,*152 had in its possession a bond for $1,200 and a mortgage to secure the same, covering real estate in Platte county, both of which instruments purported to have been executed by John Baughman; that the said Loan & Trust Company believed said Baughman was a real person; believed that he had executed the bond and mortgage aforesaid, and that in consequence thereof they were indebted to him in the sum of $1,136; that they executed the check in question intending thereby to pay him such supposed indebtedness. It thus appears that the Loan & Trust Company, when it issued said check, intended it for a real person named John Baughman Who it supposed had executed the bond and mortgage aforesaid. No other person, under these circumstances, could indorse said check, or without Baughman’s true indorsement rightfully receive the money therein directed to be paid. Neither the defendants nor any other bank was authorized to pay or cash said check without the genuine indorsement thereon of the payee, the person for whom it was intended by the Loan & Trust Company. Therefore, if Baughman was a fictitious person, and his name indorsed on the check a mere forgery, the payment thereof by the Farmers & Merchants Bank was unauthorized, and it and its co-defendant must bear the resulting loss. '
“8. But if a person bearing the real or assumed name of John Baughman made to the Loan & Trust Company the application for a loan given in evidence, and executed the bond and mortgage aforesaid, and also indorsed his name upon the check in question before it was presented for payment to the Farmers & Merchants Bank, then the payment of said check by said bank was authorized and rightfully made, and the plaintiff cannot recover, even though Baughman did not own the land described in the mortgage and was unknown in this county, and either.alone or in collusion with others, imposed on and deceived the Loan & Trust Company with intent to cheat and defraud it.
*153 “9. The Loan & Trust Company, however, did not intend that said check should be paid to Swartzendruver. Therefore if he forged the abstract, bond and mortgage his and indorsement of the name of ‘John x Baughman’ on the check, payment thereof by the Farmers & Merchants Bank was unauthorized, and the plaintiff is entitled to a verdict in its favor.”
By the seventh instruction the jury was toid that, the trust company believing that John Baughman was a real person, and intending the check to be paid only to his order, no other person could indorse it, or, without Baughman’s true indorsement, rightfully receive the money, and that the bank could not rightfully pay the money without his true indorsement. By the eighth it was in effect stated that if a person whose real or assumed name was Baughman had made the application and executed the bond and mortgage, and had indorsed the check, then the indorsement was genuine and the bank protected. The ninth was that the trust company did not intend Swartzendruver to be the payee, and if he indorsed the name of Baughman the indorsement would be a forgery. A little reflection, even without the aid of the many authorities cited, must show that this theory was sound. An indorser guaranties the genuineness of prior indorsements; and if the Baughman indorsement was not genuine the indorsing banks were liable, unless indeed the trust company was estopped to set up the forgery and the bank’s repayment of the amount to the company was therefore voluntary—a question arising on another branch of the case. If some one other than Swartzendruver, or even some one in collusion with him, falsely pretended to own the land, executed the bond and mortgage and indorsed the check, the indorsement would not be forged, it would be by the person to whom the check was in terms payable. The false representation of ownership of the land, and the assumption of a false name would be merely steps in de
Examining the evidence with a view to this issue we are persuaded that it demanded a -verdict for the plaintiff, and that the verdict rendered cannot be sustained. In this we assume, as the parties assumed by their method of trial, and as the district court charged, that the burden of proof was on the plaintiff. The plaintiff so clearly satisfied .this burden that without countervailing evidence there was no room for a finding adverse to plaintiff. The plaintiff showed that the abstract was forged, that Baughman never owned the land and the real owner had no connection with the transaction. The application stated Baughman’s address to be Columbus and the postmaster did not know of such a person’s ever receiving mail there. Several residents of the neighborhood, believing themselves conversant with its habitués, never heard of Baughman. The application was entirely in Swartzendruver’s handwriting. The signature of Baughman in each instance, and that of his wife on the mortgage, was by means of a mark, and in each instance was witnessed by Swartzendruver alone. The check was presented by Swartzendruver alone, and no' one could point to any other person as having had connection with the unlawful operation. Swartzendruver received the money and soon after fled the country. The inference from these facts certainly is that he Was the criminal. The presumption of innocence does not aid the defendants. A crime was proved. Swartzendruver was at least an accomplice. To avoid the conclusion of forgery by Mm it is necessary to presume without any proof that another crime was committed by another person.- There should be some proof of this before even a doubt of Swartzendruver’s sole guilt could reasonably arise. It is claimed that there is some proof arising from two facts:
One of the defenses interposed, and sustained to a certain extent at least by special findings of the jury, was that Swartzendruver was the agent of the trust company, authorized or apparently authorized to indorse the check
It is said that it is a matter of common knowledge that in such cases the correspondent is expected to procure payment of the check and discharge prior incumbrances from its proceeds, and that to do so he must either indorse the check or procure its indorsement. It is therefore claimed that apparent authority thereby existed, the fact of Swartzendruver’s agency being known to the bank. If such a custom exists, it is peculiar to a single class of operations and is at variance with the tenor of the checks drawn in tMs case. The court certainly cannot take notice of such a custom and it was neither pleaded nor proved. Its legal 'effect, if it exists, cannot be now considered.
Reversed and remanded.