296 F. 867 | 5th Cir. | 1924
This is a suit to recover back $60,000 paid out by a bank upon checks drawn upon it, which it is alleged were forged. The plaintiffs are partners, under the firm name of Maitland, Coppell & Co., and conduct a bank in the city of New York. In October, 1921, the Tampico branch of the Banco Nacional de Mexico, located at Tampico, Mexico, was and for a long time had' been a correspondent bank of the plaintiffs, and was accustomed to issue its checks upon the plaintiffs upon forms supplied by them. These blank checks were kept under lock and key, and were taken out only when occasion arose for drawing upon the plaintiffs. It was the custom of the Mexican branch bank, whenever it issued checks upon the plaintiffs, immediately to send letters of advice, and of the plaintiffs, before paying any such checks, to receive such letters of advice. However, about October 5, a plan was adopted of indicating by secret code numbers that cheeks were genuine, and thereafter the plaintiffs sometimes paid checks bearing such secret code numbers without first receiving letters of advice. October 3, two checks, one for $20,000 and one for $15,000, purport to have been issued by the Mexican branch bank upon the plaintiffs, payable to the order of Manuel J. Espinosa, and two letters of advice purport to have been signed and sent by that bank to the plaintiffs at New York.
October 5, or two days later, a person representing himself to be Manuel J. Espinosa presented these two checks to the Raredo National Bank, defendant, at Raredo, Tex., on the Mexican border, a distance of 300 or 400 miles from Tampico. He produced a passport which contained his signature and photograph. Defendant inquired of him as to his business in Texas, and was told by him that he was about to become engaged on a large scale in the purchase and shipment of cattle to Mexico. He indorsed the checks and signed an identification card, and these signatures corresponded to the signature on the passport. The defendant then accepted the checks for collection, indorsed them “Pay to the order of any bank, banker or trust company. Previous indorsements guaranteed,” and sent them to its New York correspondent, the National City Bank, at the same time requesting information by telegram whether the checks were paid by the plaintiffs, and October 11 received a telegram from its correspondent that they had been paid. On October 13 a third check, dated October 11, for $25,000, purporting to have been drawn by the Mexican branch bank on the plaintiffs, and payable to the order of Manuel J. Espinosa, was deposited by the same person with the defendant, accepted for collection, and handled in the same manner as the first two checks. The defendant sent this check to the same correspondent in New York, and on October 17 received telegraphic advice that it had been paid by the plaintiffs. The petition alleges, and the evidence shows, that the defendant .accepted the three checks for collection, and did not pay out any money on them until after it had learned that the checks had been honored by the plaintiffs. All of the money, except $74, was withdrawn during the month of October. The person who represented himself to be Manuel J. Espinosa registered at Nuevo Raredo on the Mexican side, and until he had drawn out the proceeds of the checks
It was the custom of the banks at Laredo to accept for collection checks or New York exchange payable to strangers upon the identification of such strangers by passports. When the first two checks were presented to the plaintiffs, they had received letters of advice from the Mexican branch bank, and the checks, appearing to be regular and in order, were paid. Plaintiffs? head cashier testified by deposition that the checks for $15,000 and $20,000 were paid in reliance upon the letters of advice, and that the check for $25,000 was paid on the faith of the secret code number appearing thereon. Coppell, one of the partners, testified that the check would not have been paid if he had known that the defendants relied on the passport for the identification of the payee; but this witness admits that the checks were not called to his attention until long after they were paid, and further that he had examined the cashier’s deposition before the trial, and “knew all about it.” November 28 the plaintiffs were notified by the Mexican branch bank that the three checks were forgeries, and they in turn wrote to the defendant, but not until after January 10, 1922, and then only that their information indicated that the indorsements were not genuine.
The inspector in charge of the United States Immigration Service at Laredo testified that identification cards were issued to persons living in .Mexico within 40 miles of the Rio Grande river upon their entering the United States, and that all other persons coming into the United States from Mexico were required to have passports; that the Immigration Service kept records of both identification cards and passports, and that0such records failed to disclose the issuance of an identification card to Manuel J. Espinosa, or the issuance of a passport to such person during the month of October, 1921; that Espinosa was quite a common name, and that the records disclosed that numerous passports had been issued to persons giving their names as Manuel Espinosa. The defendant did not make an examination of these records.
The only conflict in the evidence is upon the question whether the checks and letters of advice are forgeries or are genuine. The checks were upon the forms furnished by the plaintiffs, and the letters of advice were upon stationery of the Mexican branch bank. The two officers, who signed both, testified that their námes had been forged both to the checks and to the letters of advicé; while, on the other hand, witnesses for the defendant, who claimed to be experts on handwriting, testified that in their opinion the • signatures to the checks were genuine. The letters of advice were not produced-or offered in evidence. At. the close of the evidence the court directed a verdict and entered judgment thereon for the defendant.' The plaintiffs assign error, and contend that there was sufficient evidence of defendant’s negligence to carry the case to the jury.
The judgment is affirmed.