22 Neb. 769 | Neb. | 1888
The case was submitted to the court below upon a stipulation of facts, as follows: “ For the purpose of this ac—
“ If under the' foregoing state of facts an action would lie in favor of the State Bank of Alma directly against the
The following is a copy of the check :
“ $385.00. Alma, Neb., Dec. 18, 1885.
“ State Bank of Alma, pay to A. J. Gype, of Alma, Neb., or bearer, three hundred and eighty-five dollars.
“B. R. Claypool.”
On the trial of the cause the court' found in favor of the State Bank of Alma.
On principle it would seem that a bank paying a forged check drawn on another bank would do so at its peril. That where it is proposed to draw funds belonging to another by means ”of a check that such check should be drawn by the proper authority. The bank to which the check is presented by a stranger may require his identification and proof that he is the lawful holder of the check. It must take the necessary steps to ascertain the genuineness of the instrument and the identity of the person presenting it, or in case of loss from such neglect it will be the party at fault. A bank receiving a check from one which has paid it may rightfully assume that the paying bank required the necessary proof, both as to the genuineness of the instrument and the authority of the holder to receive the money thereon. Ordinarily it will not be known in the second bank that the person presenting the check to the bank paying the same was a stranger and no identification was required. Nor can it be known that the drawer was not present in the bank when the check was presented and paid. The second bank, therefore, having received the check from a creditable bank, may assume that it has taken the necessary precautions to ascertain the genuineness of the signature and the identity of the person presenting the check. In this case had the plaintiff in error required the holder of the check to prove who
The case of Ellis v. Ohio Life Ins. and Trust Co., 4 O. S., 628, is similar in many respects to that under consideration. It is said, page 662: “ To entitle the holder to retain money obtained by mistake upon a forged instrument, he must occupy the vantage ground by putting the drawer alone in the wrong; and he must be able truthfully to assert that he put the whole responsibility upon the drawer and relied upon him to decide, and that the mistake arising from his negligence cannot now be corrected without placing the holder in a worse position than though payment had been refused. If the holder cannot say this, and especially if the failure to detect the forgery, and consequent loss, can be traced to his own disregard oí duty, in negligently omitting to exercise some precaution which he had undertaken to perform, he fails to establish a superior equity to the money, and can not with a good conscience retain it. To allow him to do so, would be to permit him to take advantage of his own wrong, and to pervert a rule designed for his protection against the negligence of the drawer into one for doing injustice to him.” See also Goddard v. Merchants Bank, 4 Comst., 147. Bank of Commerce v. The Union Bank, 3 Id., 230. Canal Bank v. The Bank of Albany, 1 Hill, 287.
In the last case the endorsement of the payee was forged and the money paid by the drawers was recovered back, although the forgery was not discovered for two months after payment and the remedy against the other endorsers was lost.
In Third National Bank v. Allen, 59 Mo., 311, where a bank having paid to a stranger a check drawn upon another bank and collected the amount from the latter, at the time of the payment neither bank was aware of the
In that case the money had been drawn on a check for the sum of $20, payable to a stranger, who, before presenting it to the bank, had altered it by substituting $328.68 in place of $20, and also by changing the name of the payer, the signature to the check being genuine.
In Espy v. Bank of Cincinnati, 18 Wallace, 604, a check was drawn by Stall & Meyer on the defendant for $26.50, in favor'of Mrs. Hart. This was raised by substituting $3,920 for $26.50, and the name of Espy,. Heidlebach & Co. for that of Mrs. Hart as payee. The check thus altered was presented to the bank and paid by it through the clearing house. The court held if this, were all the case there would be no doubt of the right to recover. E., H. & Co., however, had sent the check to the bank before paying the same, and were informed that it was good, a question which does not arise in this case.
After a careful examination of the authorities we have no doubt that a party who pays a forged check does so at his peril, and if by means of his endorsement and use of the same he thereby obtains money from another he is liable for the amount thus received. The Capital National Bank and also the State Bank of Alma had the right to. assume that an instrument sent forth with an endorsement of the plaintiffs, on which they received value, was genuine.
There is no error in the record and the judgment of the district court is affirmed.
Judgment affirmed.