7 Utah 245 | Utah | 1891
It appears from the evidence in this record that Zion's Savings Bank & Trust Company, by its cashier, drew a bill of exchange for the sum of $6.50 on 0. B. Richards & Go., of Flew York, payable to the order of one J. S. Field; that the latter indorsed it to-Brainerd & Robinson, and that they assigned it to the plaintiff for the consideration of $500 in cash and $100 due on a real-estate transaction. It also appears that the draft had been raised to $600 before the assignment to the plaintiff. The plaintiff also assigned the bill; and when the forgery was discovered, and the maker refused to pay, the plaintiff refunded the $500 to his assignee, and brought this suit against the defendants to recover the amount so paid by him to the defendants. Upon the trial the jury found a verdict for the plaintiff for that
This is not an action based upon the assignment. It is an action to recover the amount paid by'the plaintiff to the defendants without any consideration and under a mistake. To permit them to retain such consideration would, in effect, give them so much of plaintiff’s money, obtained under a mistake, and without any consideration to plaintiff, and without fault on his part. There is a conflict in the authorities as to the necessity of demand and notice when the indorser does not receive the consideration for the transfer of title, as when he is a mere accommodation indorser. The drawee of a bill is presumed to know the signature of the drawer, and he must determine as to its genuineness and refuse payment; if not, he pays at his peril. Not so, however, as to the., other signatures on it, or the writing in the body of it.. AfB to those and such writing he must use reasonable* care to prevent being imposed upon; and so, as to the-drawer, he is presumed to know his own signature, and. to be able to determine whether the amount named in it has been raised, and the law requires him to give prompt notice to the drawee of such forgeries. Some cases hold that demand and notice should be averred and proven when the action is upon the assignment to recover back the consideration paid; but when the action is to recover on the ground of want of consideration and mistake they hold no such demand or notice necessary to be averred or proven.
The law applicable to the facts of this case is stated* as we hold, in sections 669a and 5, Daniels, Neg. Inst, i