188 Mo. App. 417 | Mo. Ct. App. | 1915
This is a suit for a balance of deposits made by plaintiffs with defeiidant bank. Plaintiffs recovered and defendant prosecutes the appeal.
Plaintiffs, Ella McClendon and William McClendon, are copartners and as such conduct a mercantile business or - store, under the firm name of Ella Mc-Clendon & Company at Sturdivant, while defendant is an incorporated banking institution, doing business in Advance, a place not far distant from Sturdivant.
The suit involves one item of $108.67, said to have been deposited by plaintiffs with defendant on August 3, 1910, and for which it is asserted defendant gave plaintiffs credit on the books of $8.67 only, and the amount in dispute with respect to this is $100: This matter may be put aside for the present, in the view we take of the case, .because 'other items of deposit which are said to involve certain altered or raised checks and two forged'checks are for immediate consideration, in view of the fact that the court obviously misdirected the jury with respect to the law of the case touching raised checks and treated them all under the rule pertaining to forgeries of the signature of the drawer.
.The facts relevant to the matter for present consideration are substantially as follows:
Plaintiffs conducted a store at Sturdivant and maintained a checking account with defendant bank at Advance, with which they made frequent deposits.; while James Kinder & Son, copartners, conducted a
During the summer of 1910, James Kinder & Son were informed by the bank that their account was overdrawn and went about investigating the matter,, for it is said there should have been a balance to their credit at that time. The investigation revealed that some checks issued by James Kinder & Son to as many different men in their employ had been altered or raised in amount, after issue, and were cashed by plaintiffs at their store and deposited in defendant bank by plaintiffs, for which they received credit. Moreover, two checks appeared to have been forged— that is, the signature of James Kinder & Son forged thereto—and those checks were likewise cashed by plaintiffs at their store and forwarded to the bank and deposited to their account. All of those checks, either raised or forged, were charged at the time, for the amounts appearing on their face, to the. account of James Kinder & Son in the bank.
The several altered checks—that is, checks raised in amount—were as follows: James Kinder & Son had issued a check in favor of James Reagan for $14.60 and this check was raised in amount so as to appear to be for $44.60, and being so raised, was
It appears, too, that plaintiffs deposited with de-/ fendant bank one cheek for $250, purporting to have been issued by James Kinder & Son in favor of James Fielding, and that they received credit for such amount in their account with the bank. This check purports to have been signed by James Kinder & Son and endorsed by James Fielding to plaintiffs, though the signature of Kinder & Son is said to be a forgery. Also, plaintiffs deposited with defendant bank one check for $150, purporting to have been drawn by James Kinder & Son in favor of Charles Castor. This check appears to have been endorsed by Charles Castor and James Fielding to plaintiffs, and appears to
In this view, defendant bank insisted on plaintiffs, Ella McClendon & Company, making good the entire loss entailed, and withheld a sufficient amount of money of plaintiffs on deposit to that end. Plaintiffs insisted that the checks which appear to be raised .in amount, were altered and raised before they' cashed them, and there is an abundance of evidence tending to prove that the forged checks were, signed James Kinder & Son by A. T. Kinder of that firm. Pour other wit-messes gave evidence tending to support the testimony of Ella McClendon with respect to the alleged forger
Defendant bank continuing in its refusal to pay plaintiffs the balance represented by the respective amounts the several checks were raised and those of the forged checks as well, also the $100 discrepancy on the item.of deposit on August 3, 1910', plaintiffs instituted this suit to recover the same.
From what has been said, it appears that there are two classes of cheeks to be considered here: First, five separate checks, which-bore the genuine signature of the drawer and the genuine endorsement of the payee, but were altered by someone through being raised in amount after they were issued; and, second, two separate cheeks which are said to be forgeries, in that they bore a spurious signature.
Two separate and distinct rules of law obtain with respect to the different subject-matters, for, as to the altered and raised checks, defendant bank is not concluded by the mere act of acceptance, while such may be true, in a proper case, in so far as the forged signature of its customer is concerned, for the bank is presumed to know the signature of its depositors. But the court treated both subjects ou the same plane—that is, as if defendant bank was concluded by its acceptance of the raised checks from a holder in due course and in good
It is entirely true that the acceptor, by accepting the instrument—and a bank who pays the check of its customer is such—admits the existence of the drawer, the genuineness of his signature, and his capacity and authority to draw the .instrument, and the existence of the payee and his capacity to endorse. [See section 10032, R. S. 1909.] In so far as the two alleged forged checks are concerned—that is-, those which bore the alleged spurious signature of James Kinder & Son—the bank is concluded, by its acceptance and payment of them, from disputing the signature of its customer, provided, of course, that Ella McClendon & Company received such checks in due course and good faith. [See Bank v. Bank, 148 Mo. App. 1, 127 S. W. 429; Missouri, etc. Trust Co. v. Third Nat’l Bank, 154 Mo. App. 89, 133 S. W. 357.
But such is not true with respect to the five checks above described which bore the genuine signature of James Kinder & Son, the drawer, and were altered or raised after their issue. -Touching these, the mere acceptance, as by receiving and cashing them—that is, charging them to the account of Kinder & Son and passing the amount they represented to the account of plaintiff—in nowise concludes the bank if it was without fault, for such a matter is reckoned with in the law on the ground of mistake, where it appears both the bank and the depositor are innocent—that is, act in good faith.
In such circumstances, both the Supreme Court of the United States and our own Supreme Court thus state the law on the subject.
‘ ‘ The principle that money so paid under a mistake of the facts of the case can be recovered back is well settled, and in the case of raised or altered checks so paid by banks on which they were drawn there are
Therefore, though it appears that plaintiffs received these altered and raised checks in good faith and without fault and deposited them with defendant, who accepted them likewise in good faith and without fault, according to their raised amounts, defendant may withhold a sufficient amount to reimburse the losses entailed on account of them alone—that is, the amount the respective checks were raised—for it is entitled to this on the grounds of mistake. It goes without saying, if plaintiffs raised the checks, as defendant’s evidence tends to prove, or took them with knowledge of the fact of their being altered and raised, no right of recovery exists on the part of plaintiffs with respect to such raised amounts, for obviously such savors of fraud. Then, too, if plaintiff Ella McClendon forged the name of the drawer, James Kinder & Son, to the two checks—one for $250 and one for $150—and deposited them with defendant, the bank ought not to be concluded as to these on the presumption that it is bound to know the signature of its'customer, for no one may be allowed the benefit of his own wrong and such would be the result in denying defendant bank the right to show the fraud and covin of the forger and thus awarding to the wrongdoer the benefit of the forgery.
The court instructed the jury at the instance of plaintiff as follows:
“The court instructs the jury that, if you believe from the evidence that the plaintiff during the year 1910, and not later than August 3,1910, delivered to defendant bank various sums of money, drafts and cheeks representing money of which plaintiffs were innocent*428 holders for value, for deposit, and that defendant placed the same to the credit of plaintiffs and subject to plaintiffs’ checks, and subject to withdrawal by plaintiffs, at and before November 15, 1911, and if you further find from the evidence that plaintiffs drew out of defendant bank all of said sums of money except the sum of $734.67, or any other sum, and that plaintiffs have demanded payment, and that payment has been refused by defendant, your verdict will be for the plaintiffs.”
This instruction authorizes a recovery on account of both the raised checks and the forged checks as if they were under the rule of law which obtains with respect to the forgeries of the signatures of the depositor and is erroneous in so far as the raised checks are concerned. The error seems to run throughout the case, for it appears in other instructions as well and is manifestly prejudicial.
It is unnecessary to further discuss the various-propositions raised in the briefs, except to say, on consideration of the entire record, numerous errors appear in the rulings of the court on the reception and rejection of testimony; also the conduct of the trial was prejudicial to defendant in that plaintiff persisted and insisted in an effort to introduce evidence entirely irrelevant, incompetent, and foreign to the issue, after the court had repeatedly denied the right to do so, and the evidence so offered was of a character calculated to prejudice the minds of the jurors against defendant and its cause. On a retrial this course should not be pursued, for enough appears in the record concerning this alone to justify reversing the judgment and awarding another trial of the issue. [See 38 Cyc. 1478.]
The judgment should be reversed and the cause remanded. It is so ordered.