63 Tex. 610 | Tex. | 1885
A bank, in accepting and paying a draft drawn by a customer, is generally held to know the signature, and, if a forged draft is accepted and paid, the bank, as a general rule, will not be heard to assert a mistake as to the signature. City Bank v. National Bank, 45 Tex., 218; Price v. Neal, 3 Burr., 1354; Levy v. Bank of the United States, 1 Binn., 27.
To that general rule, however, there are certain exceptions. In National Bank of North America v. Bangs, 106 Mass., 444, it was said: “ But this responsibility, based upon presumption alone, is decisive only when the party receiving the money has in no way contributed to the success of the fraud, or to the mistake of fact under which the payment was made. If the loss can be traced to the fault.or negligence of either party, it shall be fixed upon him.” Gloucester Bank v. Salem Bank, 17 Mass., 33. In the absence of actual fault or negligence on the part of the drawee, his constructive fault in not knowing the signature of the drawer and detecting the forgery will not preclude his recovery from one who has received the money with knowledge of the forgery, or who took the check under circumstances of suspicion, without proper precautions, or whose conduct has been such as to mislead the drawee, or to induce him to pay the check without the usual scrutiny or other precautions against mistake or fraud.” See, also, Ellis v. Insurance & Trust Co., 4 Ohio St., 628.
Here the check had not gone into circulation; it was drawn in favor of Rouvant and was indorsed and collected by him. At that time he was a responsible merchant in the city of San Antonio, and was known to the bank as such. When the check was presented, payable to and indorsed by him, the bank might well assume that there were no ■ suspicious circumstances attending its execution, and
If Kouvant, at the time the check was paid, had informed the bank of the suspicious circumstances under which it was made, or that he was not certain as to the identity of the drawer, doubtless the bank would have subjected the check to such critical examination as perhaps would have resulted in the detection of the forgery.
But a short time before this Kouvant had other transactions with Nichols, and had received from him a check upon the bank under his own signature. This he had presented and collected. Here he accepts a check for $550, executed by the same individual, but under a different signature, in the name of another person. Then can it be said that he was without fault in receiving, indorsing and collecting the check, and not informing the bank of the suspicious circumstances attending its execution? The loss is attributable to Kouvant’s negligence, and upon him it should be fixed.
There is nothing in the objection that the delay in detecting the forgery precludes a recovery upon the part of the bank. None of the suspicious circumstances attending the execution of the check, though known to Kouvant, were known to the bank. There was nothing which would suggest to the bank a necessity for a more critical examination of the check. The forgery was discovered as soon as Igel examined his bank statement, and Kouvant was immediately thereafter informed of it.
Our conclusion is that there is no error in the judgment, and that it ought to be affirmed.
Affirmed.
[Opinion adopted February 6, 1885.]