64 F. 703 | 2d Cir. | 1894
This sum of $1,924.80 was collected by the savings hank from the assistant treasurer of the United States at New York on or about August 9, 1882, upon two drafts
The law applicable to such a state of facts is correctly and succinctly stated in the opinion of the district judge:
“Money paid under a mistake of fact may be recovered back. Negligence of the plaintiff in making the mistake does not give the defendant the right to retain what is not his, unless such negligence has so misled and prejudiced him that it would be inequitable to require him to refund. A party who transfers a bill of exchange by indorsement warrants that the instrument is genuine, and is liable upon the warranty if any of the names prior to his own are forged. National Bank of Commerce v. National Mechanics’ Bank, 55 N. Y. 211; White v. Bank, 61 N. Y. 316; 1 Edw. Bills & N. §§ 242, 273, 274 ; 2 Pars. Notes & B. 597.”
The plaintiff in error contends, however, that under the facts proved in this case it should not be required to respond. It is argued that the loss was the natural and proximate result of negligence in issuing the drafts. It appears, however, that they were issued only upon the receipt of vouchers regular in form, apparently subscribed by Alma Wood and by two witnesses, with a certificate by a notary public that all three of them had, on August 2, 1882, appeared personally before him, and made oath to the truth of their respective statements, • and that he believed them to be credible persons. With such vouchers before him, it was certainly not negligence' on the part of the pension agent to send checks for the amount receipted for to the person inscribed on his roll as a pensioner, at her post-office address. The government had a right to rely upon the fact that the assistant treas-
On the back of the drafts was printed the following notice:
“The payee’s indorsement on this check must correspond with the signature to (he voucher for which the cheek was given. If the payee cannot write, liis or her mark should he witnessed, and the witness state his or her residence in full.”
It is contended that the effect of this is to make the draft payable, not to the individual named as payee, but to whoever might indorse it with the same signature as that affixed to the vouchers. There is no force in this contention. The notice was, as the district judge held, intended only to insure greater accuracy and precision, and was for the benefit of all who might thereafter deal with the drafts. The requirement that Alma Wood should indorse the drafts with the same signatura; with which she signed the vouchers did not operate to change the designation of the payee, it was still the ‘'order” of Alma Wood, and of Alma Wood only, which was required to authorize the payment of the money to any one other than herself. Moreover, it in no way misled or deceived the bank, which made no effort to ascertain whether or not the signature corresponded, but cashed the drafts on the simple assurance of its depositor that the signature of Alma Wood was correct.
The fact that the government did'not discover the forgery for two years after payment of the drafts is no defense. Where the1 genuineness of the signatures to the vouchers was duly certified by a notary public, as the statute required, and the genuineness of the signatures to the drafts was guarantied by a responsible banking corporation, which had presumably informed if self before presenting ihe paper, there was nothing to excite the suspicion of (he government officers. How it came about that suspicion was finally awakened, and the fraud discovered, does not appear; but the mere fact that this did not happen until two years afterwards will not support the contention that it was negligence not to discover it before the bank had lost the opportunity of itself recovering from the individual who had swindled it. The proof shows that the bank was notified some three days after the forgery was discovered, which was certainly a reasonably prompt notice. The refusal of the defendant in error to return the drafts has in no way prejudiced the plaintiff in error, or deprived it-of any remedy against those who defrauded it. The judgment of the circuit conit is affirmed, with costs.