75 P. 727 | Utah | 1904
after stating the facts, delivered. the opinion of the court.
In tbis case it appears that appellant was well acquainted witb tbe signature of James Molloy, of Corinne, wbo was both a depositor and a stockholder of defendant bank, and that bis signature is easily distinguished from that of James Malloy, of Denver, Colo., to whom tbe draft was sent. Not only is there a marked dissimilarity between tbe signatures of tbe two men, but their names are spelled differently. Therefore it is manifest that, if appellant bad exercised ordinary care and prudence at tbe time it received tbe order from James Malloy, of Denver, for tbe draft, it would not have been possible for him to have perpetrated tbe fraud and procured tbe draft. Not only did appellant fail to exercise ordinary business care on tbis occasion, but accompanied tbe draft witb a letter which was sufficient to enable Malloy to dispel every doubt that tbe ordinary business man might entertain as to tbe regularity of the transaction that put him in possession of tbe instrument. The rule is tersely, and, we think, correctly, stated in tbe case of Crippen v. American Nat. Bank, 51 Mo. App. 508, as follows: “That when both parties to a transaction are innocent, and tbe loss must fall upon one, it should be upon tbe one wbo in law most facilitated tbe fraud.” Appellant, having issued and placed in tbe bands of an impostor its draft, a negotiable instrument that is accepted and exchanged witb almost tbe same degree of confidence in commercial centers as are national bank notes, ought not to be permitted to repudiate it, and compel respondent, wbo bon-
We are of the opinion, and so hold, that appellant, by its own carelessness having furnished Malloy the means by which he perpetrated the fraud, ought to stand the loss occasioned thereby.
The judgment is affirmed, with costs.