15 N.E.2d 721 | Ill. | 1938
Lead Opinion
An action of assumpsit was brought against the Kaspar American State Bank in October, 1932, by the National Bank of the Republic to recover $3398.02, on account of one hundred forty-two checks drawn upon it and its assignor, the Standard Trust and Savings Bank. The checks in question had been drawn between September 6, 1927, and May 1, 1928, by an employee of the Burton-Dixie Corporation, payable to the order of eighteen of its employees, ostensibly for pay-roll purposes. Each check bore the purported endorsement of the respective payees which, it is claimed, was forged by one of the drawer's employees. All of the checks were subsequently endorsed by one Mike Zupan and deposited by him with defendant who again endorsed them and collected payment from plaintiff or its assignor. A typical check is as follows: *36
"Special Account Check Burton Dixie Corporation 2024 South Racine Avenue 63763 Chicago, Jan. 10, 1928
Pay to the Order of Tony Alozoitis $24.75
Exactly Twenty Four Dollars Seventy Five Cents Not good for more than One Hundred Dollars — or after sixty days from date.
The National Bank of the Republic (2-13) Chicago, Ill. Burton Dixie Corporation by A.H. Hafferkamp."
"Endorsements:
Tony Aloziotis Mike Zupan Kaspar American State Bank Paid through Chicago Clearing House on January 16, 1928, Continental National Bank and Trust Company."
At the trial, defendant (appellee here) made no effort to refute the evidence of the forgeries offered by plaintiff nor did it deny that it had received payment from plaintiff or its assignor. A jury in the circuit court of Cook county returned a verdict for plaintiff and judgment was rendered thereon for $3660. On appeal, the Appellate Court for the First District reversed the judgment because "the delay for a period of four years in notifying the defendant bank of the forgeries defeats plaintiff's right to recover," and judgment was rendered there against plaintiff for costs. We granted leave to appeal.
Section 66 of the Negotiable Instruments act (Ill. Rev. Stat. 1937, chap. 98, par. 86) provides that every endorser, not an accommodating party, who endorses without qualification, warrants to all subsequent holders in due course that the instrument is genuine and that he has good title to it. These express warranties, however, extend only to subsequent holders in due course and, by definition, (Ill. Rev. Stat. 1937, chap. 98, pars. 72, 213,) the drawee is excluded from this class. (8 Corpus Juris, p. 393.) We *37
are not concerned with the liability of an endorser who guarantees all prior endorsements, since the Kaspar American State Bank made no such endorsements. Section 23 of the act (Ill. Rev. Stat. 1937, chap. 98, par. 43) provides that where a signature on an instrument is forged, it is wholly inoperative and "no right * * * to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority." Thus, defendant was not entitled to collect the money from plaintiff drawee in the first instance, and we have held that where payment has been made without knowledge of the forged endorsement of the payee, the drawee may recover the amount so paid. (Cosmopolitan State Bank v. Lake Shore Trust and SavingsBank,
The only Illinois case where this same question has been considered and passed upon by this court is favorable to the defendant's position, and, in our judgment, decides the issue. InFirst Nat. Bank v. Northwestern Nat. Bank,
A.H. Hafferkamp, an officer in the Burton-Dixie Corporation, testified that they found out about the forgeries in "June or July or August, 1928." That company hired an investigator in October, 1928, to discover further facts surrounding the issuance of the checks but the exact time when plaintiff bank learned of the forgeries does not appear in the record. It is not denied that, as found by the Appellate Court, it was at least four years prior to the bringing of this suit. The burden was upon plaintiff to show when it learned of the forgeries and when it notified defendant. In the absence of such a showing in the record, we must conclude, as claimed by defendant, that the beginning of this suit in 1932 was the first notice received by defendant. Had plaintiff notified defendant earlier, the latter might have taken steps to hold Zupan, the prior endorser, or the forger himself. Thus defendant was necessarily damaged by plaintiff's negligence and delay in notifying it within a reasonable time after discovering the forgeries. What is reasonable diligence in giving notice is usually a question of fact to be determined in each *39 particular case. Under all authorities seen by us such a period as four years' delay in giving notice after discovery would preclude recovery on forged paper. See 3 Randolph on Commercial Paper, sec. 1740.
Plaintiff has cited Crahe v. Mercantile Trust and Savings Bank,
Plaintiff further contends that even if it was under a duty to notify defendant of the forged endorsements, defendant waived such defense because it did not set it up in its affidavit of defense. An essential part of plaintiff's cause of action was proof that it had notified defendant of the forgery and such notice was alleged in four counts of plaintiff's declaration. Plaintiff's affidavit of claim filed with its declaration pursuant to section 55 of the Practice act of 1907 (Cahill's Stat. 1931, chap. 110, sec. 55) significantly failed to make any similar allegation and the affidavit of defense filed with defendant's plea of the general issue merely met the allegations in the affidavit of claim. While defendant waived all other defenses not stated in its affidavit, this did not relieve plaintiff of the necessity of proving the essential averments of its declaration. (Harrison v. Rosehill Cemetery Co.
In its notice of appeal to the Appellate Court defendant failed to include a prayer for relief as required by rule 33 *40 of this court. Because of this, plaintiff now argues that the Appellate Court had no jurisdiction to hear the case and that subsequent proceedings are a nullity. While the filing of a notice of appeal is made jurisdictional by section 76 (2) of the Civil Practice act, (Ill. Rev. Stat. 1937, chap. 110, sec. 76, par. 200,) the failure to include a prayer for relief therein is merely an error of form and not of substance. Where, as here, an appellee is not prejudiced, the Appellate Court is not deprived of jurisdiction by technical errors of this sort.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
Dissenting Opinion
I respectfully contend that the defendant is in no position to assert that it received no notice of the forgeries until this suit was filed. It did not set up in its affidavit of merits that lack of notice would be a defense, and the abstract of record, on page 73, reveals why this defense was not asserted in the trial court. Frank Mayer, house attorney and assistant trust officer for the Kaspar American State Bank, had a conversation about the checks involved in this case in the latter part of 1928, and this is reasonably close to May 1, 1928, the date of the last check on which an endorsement was forged. The proof indicates that defendant was promptly notified and never thought of asserting this defense until it reached the Appellate Court. The majority opinion reaches the conclusion that proof of notice was a part of plaintiff's case, since the giving of notice was alleged in some of the counts of its declaration, and so it did not matter whether lack of notice was set up in defendant's affidavit of merits. In United States v. National Bank of Republic, 141 Fed. 208, it is held that a declaration which fails to allege the giving of such notice is not demurrable. In this case the common counts, numbered 1 and 2 in the amended declaration, and counts 7, 8 and 9, did not allege *41
notice. Counts 3, 4, 5 and 6 alleged the giving of notice. The first named counts would support the verdict and judgment, since the surplus allegations of the other counts need not be proved.Clay Fire and Marine Ins. Co. v. Wusterhausen,
But even if the question of notice were properly presented, I believe the majority opinion is wrong. The case of First Nat.Bank v. Northwestern Nat. Bank,
The majority opinion distinguishes the Wizard Oil Co. case by saying that there is no duty to discover the forgery, but that once it is discovered prompt notice must be given. If the reason for requiring prompt notice is to enable the cashing bank to apprehend the forger, it would seem that diligence should be required at all times. While Crahe v. Mercantile Trust andSavings Bank,