201 N.W. 949 | Mich. | 1925
Palmer Brothers, payees, for value and before maturity, transferred by indorsement, qualified by the words "without recourse," to plaintiffs, private bankers, what purported to be the negotiable promissory note of defendant, Budzier. Sued on the note in justice's court, defendant on oath denied execution, adding also to such denial:
"And if his signature appears on any note held by Palmer Bros., or the plaintiff herein, it was procured by trickery, fraud and misrepresentations."
At the trial in the circuit court, testimony for defendant was to the effect that the note was a forgery, or, if the signature was genuine, it had been procured by a trick, substituting one paper for another. Defendant had verdict and judgment. Plaintiffs bring error.
1. That plaintiffs held for value and without notice is not questioned. But, if defendant's signature had been forged, or obtained by the trick, in effect a forgery (1 Joyce on Defenses to Commercial Paper [2d Ed.], § 191; Gibbs v. Linabury,
2. With proper instructions as to the effect of a finding, the court submitted two questions to the jury: (1) Was the note a forgery, not signed by defendant? (2) Had his signature been procured by the trick as claimed? Of course, defendant's testimony and claims as to signing were inconsistent. But it was for the jury to find the fact under all the evidence.Goonen v. Railroad Co.,
3. Error is assigned on the following from the charge:
"Mention has been made here with reference to the fact that the note was signed, 'without recourse.' The fact that the note was transferred from Palmer Brothers to the bank 'without recourse' does not, of course, prevent the bank from recovering against the original maker. The only thing the 'without recourse.' did was to restrict any liability on the part of Palmer Brothers. You may take into consideration, however, the fact that this note was signed by Palmer Brothers 'without recourse' as bearing upon Palmer Brothers' knowledge or idea as to whether or not this note was obtained by trickery, or was a forgery, if it has any weight in your mind, as bearing upon that proposition. If it has no weight for the purpose of establishing whether it is a forgery or he willingly signed the note, it has no bearing on the case. The bank has the right to buy this note 'without recourse.' "
That the payees indorsed "without recourse" had no tendency to show that plaintiffs were not purchasers in good faith.Borden v. Clark,
4. When one of two innocent persons must suffer by the act of a third, the loss must be borne by the person who enables such third person to occasion it. Under this maxim, and on this record, if defendant was guilty of negligence in signing the note, if he did sign it, he is bound. He and Graham were strangers. He had no serious infirmity. He had full means of ascertaining the true character of the papers to be signed. There is evidence that he could read, but did not, that the papers were not read to him, but that he merely signed as directed without inspection or examination of the papers.
The question of his negligence was for the jury. Van Slyke v.Rooks,
Judgment reversed. New trial granted, with costs to plaintiffs.
McDONALD, C.J., and BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ., concurred. *623
