557 P.2d 150 | Utah | 1976
Appeal from a directed verdict for Robertson in a case sounding in negligence, allegedly by the transmission of funds by wire in which the money originally was payable to Robertson and Harrison, and the defendant allegedly caused it tortiously to be transmitted to Robertson or Harrison, where the latter received the wired draft, endorsed it, cashed it, and disap
The conceded facts in this case may be abstracted as follows:
The plaintiff, Robertson, resident of New Plymouth, Idaho, was induced by one Harrison (who came to Robertson’s place of business) to invest $16,500 in a corporation named Pharos, with offices in Murray, Utah, operator of a fertilizer plant in Tooele, Utah, a few miles away. Robertson borrowed the money from a friend and delivered it to Harrison.
At the time for repayment, the company had sold out, but it executed a check payable to both Robertson and Harrison, as joint payees drawn on defendant’s branch bank at Murray, Utah. Why this was done is not explained and Robertson did not know why the joint payee setup evolved. Nonetheless, both endorsed the check, and Robertson (not Harrison) presented it for payment by depositing it in his account in the Bank of Idaho at New Plymouth, Idaho.
The check bounced, followed by Robertson contacting Harrison. The latter said he would take care of the matter, which he did in part only.
He deposited a cashier’s check in defendant’s bank, payable to Robertson and Harrison, picked up the worthless check in exchange and told the defendant bank to process it as written (in the conjunctive) by wire, instead of by mail. Defendant not being a member of the Federal Reserve Bank, acting through an intermediary Salt Lake City bank agency that was a member, instructed the latter to complete the transaction by wire, which was done by authorizing, however, the payment to Robertson or Harrison, not to Robertson and Harrison and for some unexplained reason the money was paid to Harrison who then disappeared. All this, unbeknown to Robertson to whom the initial payment had been delivered (by what turned out to be a worthless check, drawn by the Pharos corporation) and deposited by him.
The Bank contends that 1) Harrison was an indispensable party whose refusal to concede was error on the part of the trial court; 2) that a directed verdict constituted error, and 3) that a negotiable instrument with joint payees is payable only if all of them endorse it, and that here both Robertson and Harrison endorsed the instrument, thus discharging it when cashed by Harrison after such joint endorsement.
As to 1): This action is one ex malificio, not ex contractu. Harrison had nothing to do with the gravamen of this litigation: a negligent payment made contrary to instruction. His malediction or peculation was not a cause of the alleged tort, but the result of it. We think Robertson or the Bank or both may have a cause of action against Harrison, but his absence or non-joinder here can in no way impugn the integrity or validity of plaintiff’s action. The latter’s cause of action would lie whether Harrison was a party or not. It is highly significant that neither party sought Harrison’s joinder, and the contention was raised only in argument in the twilight of the case. We think the position of defendant on this point is not tenable here.
As to 2): With respect to the directed verdict being in error, it is elementary that failing dispute in the facts, such procedure is acceptable on motion.
As to 3): Had defendant marked the check payable to both Robertson and
. Anderson v. Cribble, 30 Utah 2d 68, 513 P.2d 432 (1978) ; 5A Moore’s Fed.Prac. 50.-02(1) ; See also Clack v. Sterling, 17 Utah 2d 245, 408 P.2d 904 (1965) ; Romney v. Covey, 100 Utah 167, 111 P.2d 545 (1941).