9 So. 2d 810 | Fla. | 1942
The appellant claims that error was committed by the circuit judge when he entered judgment on the demurrer to the amended fifth count of the declaration after "offering leave to plaintiff to further amend . . . as he might be advised" and after "plaintiff in open court" declined to revise his pleading.
The principle relied upon to secure reversal is the one stated in Guaranty State Bank Trust Co. v. Lively,
Having given the rule which the appellant claims as support for his contention and the part of the statute of this State with reference to the status of a negotiable instrument bearing the name of a fictitious payee we now proceed to an analysis of the declaration in this case.
It was stated there that the appellee, a banking corporation, charged to the account of the plaintiff a check drawn by him and payable to "Browns Electric Shop, Zephyrhills, Fla." There was attached to the check "an invoice to be receipted for by Brown's Electric Shop, Zephyrhills, Fla." and, so it was alleged, the bank was directed "by instructions contained upon said check" not to pay it unless the invoice attached "was receipted by Brown's Electric Shop, Zephyrhills, *230 Fla." Parenthetically, copies of the check and invoice were made parts of the declaration.
It was then averred that no such business actually existed or was being operated at the town stated and that this was not known to the drawer. There followed in the declaration the charge that a duty devolved upon the bank "to ascertain whether in truth and in fact there was such a payee" as we have given in quotations and to pay the check only to that precise payee "but that said bank paid said check relying upon a fictitious endorsement 'Brown's Electric Shop.'" Although no mention had theretofore been made in the declaration of "Sadler's I. G. A. Store," it was then averred that the plaintiff "was led to believe" that said organization had received from "Brown's Electric Shop" certain machinery described in the invoice "and, therefore, this plaintiff [appellant] extended" to the former credit in the amount of the check but that, contrary to appellant's belief, "Sadler's I.G.A. Store" did not receive from "Brown's Electric Shop" the machinery described and "Sadler's I.G.A. Store did not pay said credit so extended" with the result that the plaintiff was damaged.
We think that the following is a fair interpretation of the transaction disclosed by the check, the invoice and the allegations of the declaration: The appellant, trading as "Johnston Fixture Co.," issued to "Brown's Electric Shop" a check on the appellee bank for five hundred dollars, the purchase of certain equipment delivered by that business to "Sadler's I.G.A. Store," and extended a credit in that amount to the latter. Inscribed on the instrument was the warning: "Do not Pay Unless Receipted Invoice Is Attached to This Check . . ." The invoice described the equipment, contained a receipt for five hundred dollars signed "Brown Elec. Shop by L.E. Brown," and bore the statement "that the [equipment] of this invoice has been satisfactorily installed and the terms of the guarantee from Brown Electric Shop are satisfactory to me" which was signed "Sadlers I.G.A. Store W.H. Sadler." Endorsed on the check were "Brown Elec. Shop By L.E. Brown" and "W.H. Sadler." *231
We think that the allegations of the declaration, considered with the instruments made a part of it, completely refute the position of the plaintiff that the check was issued to a fictitious or nonexisting person, as contemplated by the rule which we stated at the outset, and that such fact was unknown to the drawer at the time thereby placing the responsibility on the bank for the amount paid by it to the payee.
Decision of this controversy hinges on a correct definition of the term "fictitious payee" as used in the statute and the decisions. The payee described in the pleading did not fall in that category. It is evidently the appellant's contention that he need allege and prove only the mythical character of Brown's Electric Shop and his own ignorance of its nonexistence in order to fix responsibility on the bank for honoring the check. This theory has been adopted by him despite the allegations of the declaration outlining a not unusual transaction. If we were to adopt his view we would lose sight of the essential characteristics of a payee who is fictitious. The distinction is well drawn in Soekland v. Storch,
Thus, it would seem that the emphasis is not placed on the actual existence of the payee but upon the intention of the drawer and the right of the payee to the proceeds. It was said by the supreme court of South Carolina that the *232
reference in the statute to a "fictitious or nonexisting person" meant one "who, though named as payee in a check, has the right to it, or the proceeds of it, because the drawer ofit so intended, and it, therefore, matters not whether the name of the payee used by him be that of one living or dead or of one who never existed." Bourne v. Maryland Casualty Co.,
Our construction of the pleading and the exhibits is that L.E. Brown, trading as Brown's Electric Shop, delivered property to appellant's debtor and that the drawer intended him to receive the money in exchange for the goods. Bourne v. Maryland Casualty Co., supra. There was no irregularity in using the trade name as payee. Renfrow v. Anthony,
Judging the entire transaction we think that the payee named here was not fictitious and that there is no responsibility on the part of the bank to pay to the plaintiff the amount of the check which actually is represented by a charge against "Sadler's I.G.A. Store." It appears from the conclusion of the declaration that that business is the one indebted to the plaintiff for the amount of the check and the court is not advised by the pleadings why the responsibility should not be placed there. It is a fair deduction that the *233 loss to the plaintiff was occasioned by the failure of "Sadler's I.G.A. Store," as alleged in the declaration, to "pay said credit so extended to it by this plaintiff."
We think the declaration wholly fails to state any cause of action against the bank.
Affirmed.
BROWN, C. J., TERRELL and CHAPMAN, JJ., concur.