99 P. 391 | Cal. Ct. App. | 1908
As disclosed by the record, defendant negotiated for the purchase of a piano from the Wiley B. Allen Company at an agreed price of $350. In payment therefor she gave to the salesman an instrument which purported to be signed by Mrs. S. M. Dimmick, whom she represented to be her sister, and for whom she was purchasing the piano. This check when handed to the salesman was in the following form:
"Los Angeles, Cal., ___ March 10, ___ 190.8. ___ No. ___9___ "The Farmers and Merchants National Bank of Los Angeles. Pay to
______________________________________ or order $ ___400___ ______________ Four Hundred ___________________ Dollars. __________ Mrs. S. M. Dimmick. __________"
As a reason for presenting the check for a sum in excess of the required amount and with the name of the payee left blank, she stated that her sister was ill, and had given her the check, not knowing from whom nor at what price she would make the purchase, but limiting the price to not exceeding $400. Defendant was requested to fill in the blank space with the name of the payee, but declined to do so, saying it was customary to stamp that in. The salesman took the check to the office on the same floor, where the manager stamped the name of the Wiley B. Allen Company in the space left blank for the name of the payee. Upon inquiry made at the bank, during which time defendant was detained at the store, it was ascertained that the check was fraudulent, both as to the signature and absence of money deposited in the bank to account of Mrs. Dimmick. The manager then presented the check, with the name of the payee stamped therein, to defendant, who, holding one end of it while he retained the other, was asked if it was not possible that a mistake had been made, and she said that the check was good. She was then placed under arrest, and stated that she had found the check and that her name was not Martin, as she had represented, but Gorham. The piano was not delivered, nor was any money paid to defendant on said check.
The check, as alleged in the information, and which defendant is charged with uttering, publishing and passing, and that was offered in evidence in support of said allegation, had *343 inserted therein as payee the name of the Wiley B. Allen Company.
Defendant was convicted as charged, and appeals from the judgment and an order denying her motion for a new trial.
The ground upon which appellant bases her right to a reversal is the fact that the check at the time it was delivered to the Wiley B. Allen Company did not contain the name of the payee; hence, it is claimed the instrument was not a check or other document within the meaning of section
It is apparent from the foregoing views that the court did not err in instructing the jury as follows: "A check or order *344 for the payment of money, however, duly executed in other respects, but having the name of the payee omitted therefrom and delivered in that condition by the maker, carries with it the authorization of the maker to the intended payee to supply the name of such intended payee, or the name of any other person to whom the intended payee may deliver the check or order with the intent to pass title thereto."
We cannot agree with appellant that "the fact that the instrument does not designate any payee at once raises the presumption that it is in circulation without authority, and one who accepts it in that condition must at his peril ascertain whether or not the person tendering it has authority to complete it or to authorize another to do so." On the contrary, bills and checks are often executed in full, with the exception of the name of the payee, which is left blank in order that it may be afterward filled up with the name of the actual holder, who demands payment. (Daniel on Negotiable Instruments, sec. 145.)
We find no prejudicial error in the record, and the judgment and order appealed from are affirmed.
Allen, P. J., and Taggart, J., concurred.