131 Misc. 162 | N.Y. Sup. Ct. | 1927
The drawee of a draft seeks to recover the amount paid thereon on the ground that the bill of lading accompanying it was forged. Plaintiff had had correspondence with a party in
The trust company had remitted the money to the defendant, and the latter had paid it to the shipper, before the facts were known. The defendant did not buy the draft, and acted only as the shipper’s agent for collection. No express warranty was made by defendant to plaintiff as to the genuineness of the bill, but plaintiff claims there is an implied warranty arising from the facts. The claim by the plaintiff seems contrary to the decision in Springs v. Hanover National Bank (209 N. Y. 224). But it is urged that that case is not in point, because there the bill was not indorsed by the defendant, and the decision did not deal with the present statute (Pers. Prop. Law, § 221, as added by Laws of 1911, chap. 248), as it had not then been enacted. The provisions of this section, however, are said to “ probably express the existing law apart from statute.” (2 Williston Sales [2d ed.], § 432, p. 1071.) The English cases are to the same effect as the Springs case, irrespective of whether the bill is indorsed. (Robinson v. Reynolds, 2 Q. B. 196; Leather v. Simpson, L. R. 11 Eq. 398; Guaranty Trust Co. of N. Y. v. Hannay & Co., L. R. [1918] 2 K. B. 623.) And the indorsement of the bill is immaterial under the statute, for, when it applies, it covers a transfer by “ indorsement or delivery.” The great weight of authority is in accord with the cases cited (see note, 26 Columbia Law Review, pp. 63-70), though there are two other recent decisions in Oklahoma to the contrary (Ft. Worth Elevator Co. v. State Guaranty Bank, 93 Okla. 191; 220 P. 340; First National Bank of Heavener v. Kempner, 103 Okla. 237; 229 P. 840).
The statute by its terms does not apply. It states the warranties “ on sale of bill ” and covers only a transfer of a bill “ for value.” The defendant did not sell the bill, and got no value for it; that is, it did not transfer it for value, but only as agent of the drawer. It is not liable to the plaintiff. (Archibald & Lewis Co. v. Banque Internationale de Commerce, 216 App. Div. 322.)
Judgment for defendant, with costs. Settle findings on notice.