68 Pa. Super. 310 | Pa. Super. Ct. | 1917
Opinion by
John P. Judge, the plaintiff, was a depositor in the defendant’s bank. Upon September 21, 1912, Zelley, who was not known to the defendant’s teller, presented for payment two checks, purporting to have been drawn by Hays, Secretary, one for $300, to the order of Biesantz, and the other for $150, to the order of Sullivan, both endorsed by the payees and Zelley. The teller refused to cash the checks unless they were endorsed by a depositor of the bank and at Zelley’s request, Judge endorsed both checks. The endorsements were unrestricted. The bank discovered that -the checks had been forged, and promptly notified the plaintiff, Judge, and charged the amount of the checks against his account. The present suit is brought by Judge to recover from the bank the amount so charged to his account. The court below gave binding instructions for the plaintiff. In the opinion filed, it rested its conclusion upon the
Inasmuch as the money was paid to Zelley and not to Judge, the last endorser, the court held that no recovery could be had under the section above quoted; that in order to recover the party from whom the money is sought must have been the actual recipient of it; that the physical act involved in the paying of the money determined the application of the section. We think this is too narrow a construction of this act. The act declares that anyone paying money on a forged instrument may recover it back from the person or persons previously holding or negotiating the same. Any person holding or negotiating the paper is liable. The thing recoverable is the amount paid to such person or persons. The last part of the section has reference to the money paid, but it .does not, we think, limit the liability of the persons previously holding or negotiating this paper. Aside from this, Judge, the last endorser, may truly be said to
If we turn to the Negotiable Instruments Act of May 16,1901, P. L. 194, we are brought to the same conclusion as to defendant’s liability. The 66th section of said act provides:
“Every endorser who endorses without qualification warrants to all subsequent holders in due course:
“(1) The matters and things mentioned in subdivi-' sions 1, 2 and 3 of the nest preceding section; and • “(2) That the instrument is, at.the time of his endorsement, valid and subsisting.”
Subdivisions 1, 2 and 3 of the preceding section provide that the endorser warrants:
“(1) That the instrument is genuine and in all respects what it purports to be;
“(2) That he has a good title to it;
“(3) That all prior parties had capacity to contract.”
In Young’s Est., 234 Pa. 287 (1912), the third sylla bus, which accurately states the decision, is as follows:
“The endorsement of a promissory note implies a guaranty by the endorser that the,maker was competent to contract in the character in which by the terms of the note he purported to contract. The endorser cannot set up the incapacity of the maker for the purpose of defeating his own liability.”
The bank was a holder in due course. The instrument
It is contended that when Judge endorsed the check he did it merely for the purpose of identifying Zelley, and that therefore to proceed against him upon that endorsement as being an assumption of the obligation to pay the check is in the nature of a fraud against him. When we come to the examination of the testimony in this we find that Hoot, the paying teller, testified that Judge’s endorsement was required because he was to assume the responsibility for the payment of the check and that this was definitely understood by him. The witness for the plaintiff testified that Judge signed for the purpose of identifying Zelley, that the paying teller stated that the account of Hays was good for the checks. Zelley states that Hoot asked Judge if he would “identify me by putting his name on the check” but when pressed said, “I don’t know how, I cannot swear to that.” His testimony seems to be the statement of a conclusion, not a narration of what actually transpired. The evidence of the
Nowhere in the evidence is there any definite agreement that plaintiff’s endorsement’ should not have its full legal effect. We think the evidence lacks that certainty which is required under our decisions. The proof of the agreement must be clear, precise and indubitable. As Avas stated in Thompson v. Schoch, 254 Pa. 585: “In order to sustain such defense, the evidence relied upon, taken as a whole, must be so persuasive in character, so free from self-contradiction or material internal variances, and so intrinsically probable, that the judicial mind can rest thereon with a conviction that the ends of justice would be served by giving it effect as the basis of a decree reforming the writing in suit. That is to say, the witnesses in support of the alleged contemporaneous parol contract must be credible and their examination must shoAv them to have a distinct recollection of the relevant material facts; and, in so far as their evidence must be mutually corroborative, they should, to a reasonable degree, shoAv a common understanding of the particular matter in question. In brief, their testimony must be clear, precise and indubitable before it can be permitted to overcome the documentary proof to which it is opposed; and, in cases of this kind, after measuring the evidence relied upon according to proper legal standards, a court should never permit a jury to do what it would not sanction if sitting as a chancellor.”
The judgment is reversed and the record remitted that judgment be entered in favor of the defendant