216 P. 560 | Or. | 1923
In 1918, the plaintiff shipped six carloads of flour to the City of New York consigned to itself. The cars were not unloaded within the prescribed time, and for that reason the railroad company delivered the flour to the Claremont Storage Warehouse, Inc., a bonded warehouseman for storage. In November, 1918, the Joseph Milling Company received from the warehouseman a statement showing that the milling company owed the warehouseman $2,000 for freight, cartage, storage, and other charges paid and made on account of the six carloads of flour. Upon receipt of this statement the plaintiff on November 26, 1918, drew its check for $1,000 on the defendant bank payable to the order of ‘ ‘ Claremount Whrs. & Storage Co. N. Y.” and mailed it to the Claremont Storage & Warehouse Company, 285 East 137th Street,” which was the address of the Claremont Storage Warehouse, Inc. This check for $1,000 was received by the warehouseman and by it credited
The plaintiff placed the selling of the flour in the hands of the Northern Grain & Warehouse Company, a concern having its headquarters in Portland, Oregon, and a “house” in the City of New York. In the latter part of March or the first days of April, 1919, the Claremont Storage Warehouse, Inc., rendered to the Northern Grain & Warehouse Company a complete statement of the charges made and credits given on account of the six carloads of flour, and this statement was by the latter company forwarded to
The defendant assigns as errors the refusal of the court to grant defendant’s motion for a judgment of nonsuit, the refusal of the court to direct a verdict for the defendant, and the ruling of the court granting the plaintiff’s motion for a directed verdict. The assignments of error do not include any objection to the reception or rejection of evidence. Both parties having moved for a directed verdict, and this being an action wherein the parties may waive the right of.trial by jury, the circuit judge was required-to decide the questions of fact: First Nat. Bank v. Bach, 98 Or. 332, 335 (193 Pac. 1041); Wells v. First Nat. Bank, 80 Or. 329, 335 (157 Pac. 145); for the parties in effect agreed to submit the questions of fact to the judge and to make him the exclusive authority to pass upon the weight of the evidence, with the result that the direction of the trial judge must be sustained if the record contains any substantial evidence to support the judgment: Patty v. Salem Flouring Mills Co., 53 Or. 350, 360 (96 Pac. 1106, 98 Pac.
The defendant contends that it was entitled to a directed verdict because the milling company failed to introduce any legal evidence showing that the payee particularly specified was nonexistent. This contention involves the argument that because of certain presumptions it must be concluded that there was a concern of some kind, corporate or otherwise, doing business as the Clearmont Storage Co. or as the Clear-mount Storage Co.; and that since the plaintiff has not offered any evidence to contradict such conclusion, it must follow that the defendant was entitled to a directed verdict on the theory that the payee particularly specified did in truth receive the money. In other words, the argument is that it must be presumed that there was a concern whose name was precisely as written in the body of the check, “Clear-mount Storage Co.” or exactly as indorsed on the back of the check, “Clearmont Storage Co.” The de fendant offered no evidence tending to show the existence of a partnership or a corporation or a person doing business under the name of Clearmont Storage Co. or of Clearmount Storage Co.; and hence if there be any evidence at all now available to the defendant for the purpose of showing the existence of a concern
“is no corporation, copartnership, or concern doing business in the State of New York, or authorized to do business in the State of New York, under the name of Clearmont Storage Company,” and that the “only concern which is authorized to use the name Claremont Storage Warehouse, Inc., is that in Bronx County, whose place of business is at 280-287 East 137th Street near 3rd Avenue, Borough of Bronx, City of New York.”
While it may be assumed for the purposes of the present discussion that the testimony of Grlasser might not weigh so much as that of the officer or officers in charge of the records, his testimony was competent and substantial in character. In this con
The defendant contends: (1) That the milling company failed to introduce any legal evidence that the indorsement of the named payee was forged or unauthorized; and (2) that there is evidence showing that Alexander Strausz had some business connection with plaintiff and that such evidence is sufficient to justify the inference that Strausz had implied authority to receive the shipment from the milling company and to handle checks in relation thereto. These two contentions are connected with each other and may be considered together. The facts thus far stated must be supplemented by a further statement.
The milling company had “been shipping more or less for several years.” If a commodity shipped was sold in advance of shipment the plaintiff forwarded a bill of lading to which was attached a draft drawn on the person to whom the commodity had been sold. On the bill of lading to which the draft was attached would be a notation stating: “Notify so-and-so”; and the person notified would be authorized to receive the shipment of goods upon payment of the draft. F. D. MaCully testified that some of the bills of lading “the year before” had notations on them: “Notify Alexander Strausz”; and that although Strausz “sold a few cars of flour the year before” he “never received any of these cars personally.” McCully also testified that he did not at the time of
“Joseph Milling Company shipped certain cars of flour to this city consigned to their company, who notified Alexander Strausz upon their arrival. Sight draft against bill of lading. Said cars were stored by the railroad company, who transported them to this city in the storage warehouse of my corporation, the Claremont Storage Warehouse, Inc., as aforesaid.”
When requested to furnish a copy of the warehouseman’s records, Wilson replied by saying:
“The following is a true transcript of all transactions with Joseph Milling Company, notify Alexander Strausz of 366 West 117th Street, New York City, as shown by the records of Claremont Storage Warehouse, Inc. * *
thus indicating the connection the warehouseman understood Strausz had with the shipments. Wilson also testified that Strausz “called at our office frequently,” and that he had no authority to indorse checks for the warehouseman. One witness for the plaintiff stated: “We were never able to locate Strausz, ’ ’ and ‘ ‘ the last time they tried to find Strausz they could not find him.”
In brief, the plaintiff was indebted to the Claremont Storage Warehouse, Inc., which had a place of business at 285 East 137th Street, New York City, and the milling company mailed to that street number a check for $700 payable to the Clearmount
It is argued that the plaintiff did not within a reasonable time object to a statement rendered to it by the bank. This statement was accompanied by paid checks as vouchers including the seven hundred dollar check. The general rule, stated in comprehensive terms, is that the depositor must give to the
The first notice of any irregularity coming to the plaintiff was in March or April, 1919, when it received the statement which had been prepared by the warehouseman. F. D. McCully observed that the statement did not credit the milling company with the seven hundred dollar check, and because of that fact he immediately went to the bank and asked H. B. Kadderly, the assistant cashier, if the seven-hundred dollar check had been returned. Kadderly severed his connection with the bank before the date of the trial and went to California where he was at the time of the trial; and he was not used as a witness by deposition or otherwise. There is no evidence that F. D. McCully did not have the conversation related by him except the inference to be drawn from the testimony of the president and cashier that notice of the forgery did not come to them until about July. F. D. McCully testified that Kadderly looked through the paid checks and found the seven hundred dollar check and upon comparing it with the one thousand dollar check it was discovered that “the indorsement wasn’t the same,” and at that time he notified the
“I hated to start suit on the proposition against a bank I had been manager of for thirty years, and was doing business with, and then the question was brought up and the suggestion that I send it to this Northern Grain & Warehouse Company, which I did, for them to see if they could do anything with the bank that paid it there.”
The testimony of McCully is to the effect that he demanded payment by the bank “of the seven hundred dollars” but that the plaintiff “didn’t get anything; they wanted to take it up and see if it could not be settled.” Schaupp testified that McCully came to him in the spring of 1919 and stated that he expected to bring suit against the bank if it did not pay the milling company “on the seven hundred dollar check”; and Schaupp brought about a meeting in his office “some time during the spring of 1919,” at which he, Gaulke and McCully were present “and at
We assume for the purposes of this case, but do not decide, that possession of the check by the bank would have been necessary in order to enable it to maintain an action against any of the prior banks or persons through whose hands the check passed; and we shall also assume for the purposes of this case, but we do not decide, that in the absence of some act or conduct excusing the making of a tender the depositor must, before he can successfully sue the bank, tender to the bank any check bearing the forged indorsement of the payee. Even though it be assumed that a formal tender was not made until August, 1919, it is quite apparent from the record that any tender that might have been made immediately after or within a reasonable time after the plaintiff received the bank statement would not have changed in the least the positions of the parties. The plaintiff, according to its evidence, notified the bank of the forgery immediately upon its discovery; and apparently the discovery of
The relation between banker and depositor is one of debtor and creditor; and the implied agreement between them is that the banker will pay only in conformity with the orders of the depositor. The obligation of the bank is not merely to use reasonable care to pay in accordance with the order of the depositor, but the undertaking of the bank is, stated broadly, absolute. A bank must pay a check only to the payee named, or to his order. The obligation of the bank is to pay a check only upon a genuine indorsement. The drawer is not presumed to know the signature of the payee; but the bank must at its peril determine the identity of the payee and the genuineness of his signature. A bank cannot charge against the account of its depositor any sums as payments unless those sums have been paid to such per
The defendant contends that the plaintiff was negligent in drawing a check payable to the order of 1 ‘Clearmount Storage Co.,” instead of “Claremont Storage "Warehouse, Inc.” And taking this contention as a premise, the defendant proceeds to argue that it is entitled to the protection of the rule that where one of two innocent parties must suffer the one whose act was the cause of the loss must bear it. Most of the precedents relied upon by the defendant are cases where the drawer made and delivered his check to an impostor. (See note in 22 A. L. R. 1128.) While the adjudications dealing with negotiable instruments issued to impostors are divisible in two classes, with one class holding the drawee liable and the other class relieving the drawee from liability to the drawer for money paid on such checks, it is obvious that the facts presented to us readily distinguish the instant case from those cases which involve checks delivered to an impostor. The plaintiff was indebted to the “Claremont Storage Warehouse, Inc.”; and for the purpose of making a payment on that indebtedness the plaintiff mailed to the “Clare
If one should hazard a guess that the plaintiff inadvertently mailed the check to Strausz, and, based upon such a guess, it should be argued that the plaintiff was negligent in permitting the check to come into the hands of a person not the payee, such supposed negligence, it has been held, would not relieve the bank from liability to the drawer for moneys paid on the forged indorsement of the payee’s name: Miners & Merchants’ Bank v. St. Louis Smelting & Refining
The defendant seeks the protection of Section 7801, subdivision 3, Or. L., which provides that a negotiable instrument is payable to the bearer “when it is payable to the order of a fictitious or nonexisting person and such fact was known to the person making it so payable.” No doubt can be said to have existed on the part of the drawer as to the identity of the payee intended. The plaintiff intended to pay the warehouseman which was an entity actually existing. It is true that no concern existed bearing the precise name written in the body of the check or the precise name indorsed on the back of the instrument; but it is also true that in the attending circumstances the name written in the body of the cheek was at the most nothing more than a misnomer and it would probably be more accurate to say that it was a mere abbreviation. The statute as to fictitious payees has no application to the instant case: 8 C. J. 178, 179, 181; Los Angeles Investment Co. v. Home Savings Bank, 180 Cal. 601 (182 Pac. 293, 5 A. L. R. 1193); Shaw, Kendall & Co. v. Brown, 128 Mich. 573 (87 N. W. 757); Weishaar v. Pendleton, 73 Or. 190, 199 (144 Pac. 401); Hill v. McCrow, 88 Or. 299, 307 (170 Pac. 306); Harmon v. Old Detroit Nat. Bank, 153 Mich. 73 (116 N. W. 617, 126 Am. St. Rep. 467, 17 L. R. A. (N. S.) 514). See, also, Shipman v. Bank of the State of New York, 126 N. Y. 318 (27 N. E. 371, 22 Am. St. Rep. 821, 12 L. R. A. 791); and Brannan on the Negotiable Instruments Law (3 ed.), 481, 482.
Whether the name written in the body of the cheek be called a mere abbreviation of the full name of the warehouseman or be treated as a misnomer, nevertheless the indorsement of the name was a
The judgment is affirmed.
Affirmed. Costs Retaxed.