154 Mo. App. 89 | Mo. Ct. App. | 1910
The amended petition in this case, as set out in the transcript before us, contains two counts or statements of the cause of action relied upon by plaintiff, both, however, relating to one and the same transaction, the grounds of recovery only differing. After averring the incorporation of the parties, for its first cause of action the plaintiff states that on and for a long time prior to September 8,1906, one Parker was a depositor in and customer of the defendant; that, on the 8th day of September, 1906, the St. Louis and San Francisco Railroad Company drew its check upon the State National Bank of St. Louis in favor of Parker, and that on the same day the check, purporting to be endorsed by Parker, was presented to the defendant, but that the endorsement thereon was in truth and in fact not the endorsement of Parker, nor any simulation of his signature, all of which the defendant then knew, or, by the exercise
For its second cause of action,' the plaintiff, after setting Cut the facts as before, avers that by reason of the matters and things stated, the defendant had and received to the plaintiff’s -use the sum of six thousand dollars, to which in justice and fairness it was not entitled and which it should not have taken or received from the plaintiff.
Wherefore, plaintiff prays judgment against the defendant for the sum of six thousand dollars together with interest there-on at the rate of six per cent per annum from the date of instituting this action and for its costs.
To each count of this amended petition a general demurrer was interposed, on the assigned cause, that neither count stated a cause of action. The demurrers were sustained, and, plaintiff standing upon its.petition, judgment followed, from which plaintiff has duly perfected its appeal to this court.
Counsel have submitted very elaborate arguments in support of their respective contentions, and the
The assignments of error relied on by counsel for appellant are, first, that the first count of the petition states a good cause of action on the theory that the negligence of defendant resulted in plaintiff’s loss, in the consideration' of which question counsel submits two propositions (a), was the defendant bound to detect the forgery when the original check of the St. Louis & San Francisco Railroad Co., bearing the spurious endorsement of Parker, its customer, was presented to it, and again when it received the draft also bearing the forged endorsement of Parker, returned by the Chicago bank?' (b) "Was the plaintiff’s loss the proximate result of the defendant’s failure to do so.? Counsel argue for affirmative answers to all of these.
The second proposition is, that the first count of the petition was also good as an action on the case in the nature of deceit, the foundation for the claim of deceit being that defendant, having failed to disclose to plaintiff that the draft had been paid and the liability of all parties terminated, represented that the draft was still outstanding in the hands of the Chicago bank, and that plaintiff, in ignorance of these facts, and without any means of acquiring knowledge, had paid over to the defendant the amount of the Chicago draft.
The. third proposition is, that the second count of the petition states a good cause of action for money had and'received to the plaintiff’s use, it being argued that under this second count, practically what is known under the old common law form of pleading as “common counts, ’ ’ the courts of law really . administered equitable relief, to recover back money which, under
It is hardly necessary to say that a demurrer admits only such facts as are well pleaded, but does not admit matters of law nor conclusions that the pleader may draw on pleaded facts.- Nor are immaterial facts considered in determining it.
For brevity, when we refer to the check of the St. Louis & San Francisco Railroad Company, drawn to order of Parker on the State National Bank of St. Louis, we designate it as “the check;” when referring to the draft drawn by defendant on the Continental National Bank of Chicago, Illinois, to the order of Parker, we designate it either as “the draft” or “the Chicago draft.”
Taking up the first subdivision of thé first assigned error, namely, that the defendant was bound to detect the forgery when the check of the St. Louis & San Francisco Railroad Company, bearing the spurious endorsement of Parker, its customer, was presented to it, and again when it received the draft, also bearing the forged endorsement of Parker, returned to it by the Chicago bank, because Parker was a depositor in its bank, it is to be observed that this argument has for its foundation the assumption, that because Parker was a depositor in the defendant bank, defendant was bound to know his signature, wherever it appeared, on any and all paper presented to it, and hence chargeable with knowledge that Parker’s signa ■
Under the second subdivision, counsel argue that it was negligence for defendant to deliver the draft, payable to Parker’s order, to Hand. Admitting, for the sake of the argument, that defendant knew that Hand was the one who had forged Parker’s name to the endorsement on the check which it cashed, drawn, be it remembered, not on it but on another bank, it is a far cry to say that it should have been put on notice that Hand would commit a second forgery by endorsing Parker’s name on the draft to Parker’s order ou the Chicago bank, and which draft defendant delivered to Hand. ¥e are unaware of any rule that requires one to presume, as a matter of law, that because a man has committed one forgery, he intends to commit a sec-
Learned counsel strenuously contend that in delivering the Chicago draft to Hand, defendant was guilty of carelessness and that as it was bound to assume that because Hand had forged Parker’s endorsement on the check, that he would be liable to forge it on the draft, that the loss of the appellant in this case is directly attributable to this action of the defendant in turning* over the draft to Hand; that the injury is directly attributable to defendant’s carelessness; that in this general duty to foresee what might happen, the law, in its endeavor to do exact justice, draws into negligence cases the doctrine that where one of two innocent persons must suffer for the fraud of a third person, he will be answerable for the loss whose care
The second assignment, founded on the claim that this first count covers allegations sufficient to bring the case into one of deceit on the part of defendant, is even more untenable than the former position. Deceit, to be actionable, must be as to some material matter, The claimed deceit in this case is that defendant concealed from the plaintiff the fact, when it exacted repayment of the amount of the Chicago draft from it, that it had already paid the draft and had it in its possession. We are unable to see how this could possibly be concealment of a mater that at all affected the plaintiff. The presumption is that when the forgery was discovered, the draft then being in the hands of defendant, turned in by. the Chicago bank, defendant paid its amount back to the Chicago bank. Defendant was then entitled to resort to the next responsible party, and that was plaintiff. Even if the • defendant had-told the plaintiff that it had itself taken up the Chicago draft and had paid it and had it in its possession, these facts would have been no defense to plaintiff as against repayment to either the Chicago bank or to respondent. It was liable by reason of the fact that it was the one who had obtained payment of the Chicago draft on a forged endorsement. It had money to which it was not entitled. The fact that if it had known the defendant hank had done what it was bound to do, that is, paid back to the Chicago hank the money with which it had been credited on account of this draft, could not in any way discharge the plaintiff from its obligation to make good, which it incurred when it endorsed the draft. It is not pretended, certainly not pleaded, that its endorsement was in any manner a limited endorsement. Even if endorsed merely for collection, it was
Referring to the third assignment of error, which it will be observed relates to the second count of the petition, which is for money had and received; practically on the idea that defendant had received money of the plaintiff to which it was not entitled, and for support of which we are referred to the decision of Lord Mansfield, 2 Burrow heretofore noted, we are unable to discover any averments which bring it within the rule permitting recovery as on common counts for money had and received. There is some effort to plead coercion as having been exerted to secure this repayment. When the averment relied on to sustain the argument of coercion is examined, we are unable to fit it to any facts alleged that in law constitute coercion. There was no duress in the matter, in the sense that the law uses that term; in fact, we do not understand counsel to claim duress. His averment in the petition is, that defendant called upon and “compelled” plain
Considering the facts as stated in this case, they fall far short of showing any compelling force such as would constitute a payment under duress sufficient to sustain an action on that ground under the common counts as for the recovery of money had and received. Nor do they show payment by mistake of any material fact, or imposition, express or implied, extortion or undue advantage, on the presence of one or more of which the right to maintain an action to recover money had and received must rest. [Moses v. Macferlan, supra.]
We have not thought it necessary to take up and analyze at any length the authorities cited by the respective counsel. Those citations, as well as the points made, will doubtless appear in connection with the report of the case. We may say, summarizing, that we have reached our conclusions on the authority of the case of First National Bank of Chicago v. Northwestern National Bank of Chicago, supra, and the cases
Corn Exchange Bank v. Nassau Bank, supra, was a case where the facts and issues involved fit very closely into the case at bar. On November 9, 1874, a check drawn on plaintiff bank, whereon the endorsement of the payees had been forged, was deposited with defendant bank in the usual course of business. Defendant collected the check from plaintiff. In March, 1876, the forgery of the endorsement was discovered, and the drawer of the check sued plaintiff'and recovered. Plaintiff then made demand on defendant, and brought suit for the amount of the check. Held: That defendant was liable for the amount of the cheek with simple interest from date of payment; that no duty rested upon plaintiff to examine and ascertain as to-the genuineness of the endorsement before paying; and that it was not estopped by the delay. The New York Court of Appeals said: ‘ ‘ The appellant contends that it was the plaintiff’s duty to examine and ascertain the genuineness of the payee’s endorsement before paying the check, and that in default of doing so, it is as against the defendant estopped from denying its genuineness- but the authorities are the other way. [Canal Bank v. Bank of Albany, 1 Hill 287; Whitney v. Nat. Bank of Potsdam, 45 N. Y. 303; Holt v. Ross, 54 id. 472, 13 Am. Rep. 615; The Union Nat. Bank of Troy v. Sixth Nat. Bank of N. Y., 43 N. Y. 452, 3 Am. Rep. 718; White v. Cont’l Nat. Bank, supra (64 N. Y. 316); Graves v. Am. Exch. Bank, 17 N. Y. 205.] ”
Rossi v. National Bank of Commerce, another of the cases before cited, presents a case where plaintiff had endorsed for accommodation a check on which the payee’s name had been forged, and defendant had then paid the check. Defendant had charged the drawee back with the amount of the check, and it had been paid. The drawee subsequently discovered the forgery
The mistake of plaintiff in this case in paying over the money to defendant, if there was one, was not one of fact but of law. The payment was a voluntary payment, possibly induced by ignorance of the law, although we do not think that even this is so. In that aspect it falls under the decision of our Supreme Court in Hethcock v. Crawford County, 200 Mo. 170, 98 S. W. 582.
The judgment of the circuit court is affirmed.