27 Iowa 319 | Iowa | 1869
If it should be admitted that this note was obtained by Henly, of the plaintiff, under such circumstances as would make him guilty of forgery; yet it does not necessarily follow that the plaintiff would not be liable on the note to a bona fide indorsee or holder for value. Mr. Parsons says, that filling up a blank by a clerk, in which his employer had directed him to write a specific sum, with a larger sum, is a forgery, though-it might bind the master
But it seems to us that the circumstances under which this note was procured amount to a fraud, and although, according to plaintiff’s testimony, it was a gross fraud, yet it will not exempt the maker from liability to a bona fide holder of the note who has paid value therefor before maturity. This conclusion is based upon the fact, as shown by plaintiff’s own evidence, that the signature of the plaintiff was placed to the blank instrument, and it was delivered and intrusted by him to the payee, Henly, for some purpose. In such case the rule may well be applied, that, where one of two innocent persons must suffer by the wrongful act of a third, he must suffer who placed it in the power of such third person to do the wrong. I Pars. on N. and B. 114, and notes to 110; Fullerton v. Sturges, 4 Ohio St. 529.
The plaintiff, as he testifies in effect, signed the instrument to be filled up as an order for an evaporator, and intrusted it'to Iienly for that purpose ; Henly fraudulently filled up the instrument as a promissory note, and it came to the hands of an innocent holder for value. Either the innocent holder or plaintiff must lose the amount; and since the plaintiff placed it in the power of Henly to do the wrong, he must suffer the loss.
The case would be very different if Henly had found the signature of plaintiff on a paper, and written the note over it; or if he had procured it otherwise, and without its being intrusted to him for any purpose. Nance v. Lary, 5 Ala. 370. The District Court erred in overruling the motion to set aside the verdict and grant a new trial.
^Reversed.