6 Kan. 456 | Kan. | 1870
A jury having been waived, this cause was tried by the court; and at the request of both parties special findings of fact and conclusions of law were made. All the evidence and proceedings in the cause are preserved, making a somewhat voluminous record, to which the ingenuity of counsel has been able to assign forty-three causes of error, although but two were noticed in the brief, or were pressed in argument. Still, we have carefully looked into the record to consider the other errors alleged. Most of them-relate to admissions of testimony, and are not well taken, as the testimony elicited tended to throw light upon the questions at issue, and in none of them do we find cause for’reversing the judgment; nor do we deem their discussion of sufficient importance to demand such labor at our hands.
The subject of the controversy in this action was, whether the bank was entitled to a credit of $3,000 paid by it on a draft, the pretended acceptance of which by the defendants in error, was a forgery. The facts of the case, as found by the court, are very full and minute, and seem to be fairly supported by the evidence in the case. So much of them as are necessary to understand the grounds of the decision of this court are as follows :
'Weichselbaum & Tappan in the latter part of the year 1868, and the first part of 1869, were partners doing
On the 18th of September, Miller, being indebted to a firm in St. Louis, gave them a bill of exchange drawn by himself on Weichselbaum & Tappan, of the same tenor, for the same amount, and due at the same time, and payable at the same place as the one first' above mentioned, which purported to be accepted by Weichselbaum & Tappan. This acceptance was a forgery. This bill by indorsement became the property of the Second National Bank of St. Louis, and was by that bank indorsed and forwarded to the plaintiff in error, who received it on the 1st of October; and soon thereafter the bank sent a notice to Weichselbaum & Tappan, at Ft. Dodge, that the draft was there for collection.
On the 28th of October the bank received a check from Tappan for $3,000, with instructions to pay Weichselbaum & Tappan’s acceptance for $3,000 due the 1st and 4th November. On the same day the bank cashed the check, and paid the amount of the draft to the Second National Ban]/ of St. Louis, and forwarded the draft so paid by mail to- Tappan at Ft. Dodge, which letter was received by Mr. Haight, the book-keeper of W. & T. at that place, and who attended, to'the correspondence and business of the firm at that place. Haight never informed his employers of the receipt of said draft, but forwarded it to Tappan at Fort Darned, where it was received by
When the draft was received at Ft. Dodge, and during most of the time till it was found, Tappan was absent at Ft. Darned or elsewhere, on business. Weichselbaum was absent in Europe from June, 1868, till the 6th of November, at which time he reached Leavenworth on his return. On the 3d of November, Scott & Oo. presented the genuine draft first mentioned for $3,000, to the bank of plaintiff in error for payment, and it was protested for want of funds, and because the bank had no instructions to pay it. On the 6th of November, Weichselbaum having reached Leavenworth on his return from Europe heard of the dishonor of this bill and made arrangements with the bank to pay it, and was then informed as to the other draft, and what had been done with it, and said it was all right. Previous to this time, while at St. Louis, he had been told of this draft and acceptance, but not that it was a forgery, but supposed both drafts had been accepted by his firm during his absence.
About the 1st of March, 1869, and with diligence after it was found, Weichselbaum brought in the forged acceptance and tendered the same to the bank, which was received; and before the suit was brought a demand was made for the money. It is also found as a fact, and is apparent from the evidence, that Weichselbaum and Tappan, and the officers and agents of the bank, as well as the bank in St. Louis, and the firm who took the forged acceptance, all acted in good faith, in the whole transaction.
The question then recurs: Which of these parties shall sustain the loss ? In other words, where does the law leave it? The action was for a balance due the plaintiffs from the bank. If the bank was entitled to a credit for the $3,000 paid by it on the forged acceptance, then the judgment should have been for the defendant; if not so entitled, the plaintiffs’ claim was correct, to the amount of the j udgment. If the bank was entitled to this credit, when did it become so ? Certainly not by the check of Tappan of the date of October 24th, for accompanying that check was a letter of instruction to pay therewith the acceptance of Weichselbaum & Tappan due Nov. 1st and 4th. By paying upon paper that
The case last cited, as well as that of the U. S. Bank v. The Bank of Georgia, 10 Wheaton, 333, involves questions as to payments made bona fide in counterfeit bank notes, purporting to be of the payee’s own issue, and received by the bank as cash, and afterwards discovered to be forged. The cases pretty strongly imply that in case of a payment of forged bank notes in such a case, and no immediate discovery and notice, the payment will be considered absolute; but in each of these cases the court said there was on the part of the bank taking the counterfeit notes, a degree of negligence which takes away all right to call on the party paying to make, good the notes. They took in payment their own notes which they were presumed to know, and which they had -greater facilities for knowing than any one else, and retained them in one case nineteen days, and in the other forty-seven days, before notice of the spurious character of the notes was given. In the. .latter case a distinction seems -to be made between banknotes, used as money, and bills of-exchange;
From a careful and extended examination of the authorities, only a few of which we have mentioned, we are of the opinion that the judgment of the court below was correct.
The judgment of the court below is affirmed.