159 Pa. 46 | Pa. | 1893
Opinion by
The argument of the learned counsel for the plaintiff meets the exigency of his case courageously, and stands squarely on the proposition that “ the effect of the act (of April 5, 1849, P. L. 426) is undoubtedly to declare that there is no legal duty imposed upon the payer towards the holder of the check to know
The act of 1849 is an omnibus act made up of the most heterogeneous materials. Sections seven to eleven inclusive are the only ones having any relation to the present subject, and they provide that no defense for want of proper, and timely demand of payment or acceptance, or proper and timely protest for, or notice of nonacceptance or nonpayment, shall avail unless the proper place shall be distinctly set forth on the instrument; that when such place is omitted demand and notice may be made at any time before suit; and the instruments shall be held payable, protestable etc. at the place where they are dated,, and that all bills, drafts etc. drawn in the state but payable out of it, with added exchange, or with “ in current funds or such like qualifications superadded,” shall be negotiable. Section ten, with which we are particularly concerned, provides for the recovery of money paid on forged signatures whether of drawers, acceptors or indorsers. In these sections, thus briefly summarized, there is nothing indicative of an intent to revolutionize the law merchant with regard to negotiable paper, but rather
At common law acceptance of a bill was an admission of the drawer’s signature, and the acceptor having thus given it currency could not set up that it was a forgery, Byles on Bills, 199 ; and payment of a forged check or bill could only be recovered back by giving notice on the same day: Id. 230. But even with prompt notice any fault or negligence of the party paying would prevent his recovery, and it has been held, from Lord Mansfield down, that an acceptor is bound to know the handwriting of the drawer, and that it is rather by his fault or negligence than by a mistake, if he pays on a foi'ged signature. Id. 334. So strictly was this rule held with regard to a bank that in our own case of Levy v. Bank of U. S., 1 Bin. 27, the mere entry of the check as cash in a depositor’s book was held to be equivalent to payment and to make the bank liable to the depositor for the amount, though the forgery was discovered and notice given to the depositor the same day, and there was no proof that the depositor had in the meantime lost anything or been prejudiced in any way by the bank’s action. Shippen, C. J., said “ the acceptor is presumed to know the drawer’s handwriting, and by his acceptance to take this knowledge upon himselfT The act of paying was thus held to be a conclusive estoppel without reference to any questions of negligence or delay or consequent loss to the other party. This was the kind of hardship which the act of 1849 was intended to remedy, and this is the extent of its operation in regard to a bank or other drawee paying on a forged signature of the drawer. The mere fact of payment is no longer, eo instanti and of itself, a bar to recovery of the money, but the principles of the commercial law are still applicable, and there is still the same necessity as before, for care, diligence and proper notice under the settled rules of the law of negotiable paper.
The two cases specially relied on by appellee are not in conflict with this view of the statute. They are sustainable on their own facts, and what is said in them must be read with reference to the facts. In Tradesmen’s Nat. Bank v. Third Nat. Bank, 66 Pa. 435, the defendant had collected the money as agent for another bank, and had credited it in the other’s account. Under Levy v. Bank, this would have been equivalent to actual payment, and would have fixed the defendant’s liability to its principal, but it was held that the act of 1849 now prevented the mere book entry from being conclusive, and as the defendant could pay the money back to the plaintiff without loss to itself, it was bound to do so. But in so holding this court said, “ the money received is in the hands of defendants, and we are not called upon to decide what would have been their situation if it had been actually paid over by them.” In Corn Exchange Nat. Bank v. Nat. Bank of Republic, 78 Pa. 233, the court below had charged that “ under the act of 1849 the plaintiff is entitled to recover unless there has been negligence on its part, and through that negligence the defendant has been put in a position to lose by paying this money to plaintiff.” The judgment was reversed, not because this charge was wrong, but because the evidence of negligence was not sufficient, Paxson, J., saying that it was “ not necessary to express an opinion as to how far negligence is a defence under the act, for the reason that there was not sufficient evidence upon this point to justify submitting it to the juiy.” It is
The result of the act of 1849 and the cases upon this subject is that the mere acceptance or payment of forged paper is no longer of itself a bar to the recovery of the money by the party paying, even though it be a bank or other drawee, nor is such party absolutely bound as at common law to discover and give notice of the forgery on the very day of payment. All that he need do in any case is to give notice promptly according to the circumstances and the usage of the business, and unless the position of the party receiving the money has been altered for the worse in the meantime, it would seem that the date of notice is not material. But on the other hand the statute does not dispense with the necessity of care and diligence on the part of the payer, nor exempt him from the consequences of his own negligence, if thereby loss would accrue to the other party.
In the present case the plaintiff received the check on Dec. 19th, paid it, entered it on its books and then apparently dismissed it from further attention. In all probability the forgery would not have been discovered until the deposit book of the supposed drawers, Dice & Co., came in for settlement, had not the defendant’s officer on Dec. 24th called and started the investigation which resulted in the discovery. This must be pronounced a want of due diligence. The drawee is still presumed to know the drawer’s signature and in the language of Chief Justice Shippen, supra, “ to take this knowledge upon himself,” though the first slip is no longer conclusive against him. But having finished his examination, dismissed the subject from further attention, and allowed five days to elapse, during which the party receiving the money has paid it out in reliance upon the plaintiff’s act, the latter cannot be allowed to say that he acted with due diligence and absence of negligence. As the facts are all clearly set out in the statement there is nothing to go to a jury.
Judgment reversed.