249 Mass. 45 | Mass. | 1924
This is an action of contract to recover the amount of ten checks, presented by the defendant to the plaintiff company and cashed by it. The declaration in its final form contained two counts: the first, relying upon the defendant’s indorsement; the second, relying upon the payments having been made by reason of mistake of fact. The trial judge found for the plaintiff on the second count; the Appellate Division vacated the finding and entered judgment for the defendant. The case is before this court on the plaintiff’s appeal.
The record discloses the following facts: One Denis Healey forged the signature of Alice H. Healey to ten checks drawn upon the plaintiff trust company. At different times
The trial judge, in accordance with the defendant’s requests, found that he was a holder in due course for value without notice, that he had no reasonable cause to believe the transactions were irregular, and that he acted in good faith. He further found that a proper examination by the plaintiff would have disclosed the forgery at the time the checks were presented for payment. Many requests made by the defendant, with the rulings thereon, are not before this court: some of them were granted without objection; others were waived; and still others were rendered immaterial by subsequent findings of fact, or the general finding. The remainder of the requests adequately raise the issue of the validity of the general finding, in the light of the special findings of fact.
The question arises, Are the rights of the parties to be determined by the provisions of the negotiable instruments act, G. L. c. 107 ? In referring to that act this court has said: “ While it does not cover the whole field of negotiable instrument law, it is decisive as to all matters comprehended within its terms.” Union Trust Co. v. McGinty, 212 Mass. 205, 206. See G. L. c. 107, § 22. Commercial Trust Co. v. New England Macaroni Manuf. Co. 247 Mass. 366. The sections of that chapter in which the rules controlling the present case must be found, if at all, are 18, 45, 85, 89, 160, 208 and 210. By § 45 it is provided, in substance, that a forged or unauthorized signature is wholly inoperative; and
By § 89, „ certain warranties by persons negotiating an instrument without qualified indorsement are enumerated. As these warranties run only to a holder in due course, it cannot be successfully contended that a drawee, who has paid the instrument at or after maturity, is a holder in due course. On the contrary the instrument is thereby discharged. G. L. c. 107, § 142.
By § 85, it is provided, in part, that “ The acceptor by accepting the instrument engages that he will pay it according to the tenor of his acceptance; and admits: 1. The existence of the drawer, the genuineness of his signature, and his capacity and authority to draw the instrument.” It is by reason of this section that the defendant contends the negotiable instruments act governs the present case.
Section 208 provides that a check, except where otherwise specified in the act, shall be subject to the provisions relating to bills of exchange, which include § 85. But § 85 relates only to the effects of acceptance; and acceptance cannot be construed to mean payment, or to include payment. Acceptance, as defined in § 18 is, “ an acceptance completed by delivery or written notification.” This is wholly inconsistent with payment.
By § 210, it is provided that certification of a check by a bank on which it is drawn is equivalent to an acceptance. Certification and payment are radically different transactions.
An examination of the act, which makes no reference to the law as it had previously existed, discloses no provision purporting to control the rights of the parties to a case like the present.
It cannot be successfully contended that it is a necessary implication of § 85 that the drawee of a bill is to be held to
The act is inapplicable for the following reasons: (a) It contains no pertinent express provision; (b) it does not ■ purport to cover all cases and contingencies; (c) there is no analogy between any express provision and the issues of the present case; (d) there is no reasonable possibility of a uniform rule under the present act which follows from the lack of an express provision in the act; (e) and finally, its framers and the legislators who enacted it were undoubtedly aware of the issues, of which the present case is an illustration, and of the conflict of authority at common law upon the question, and could have framed an express provision if they had so desired.
The common law in this Commonwealth is therefore to govern. The rule of Price v. Neal, Burr. 1354, is in force. Dedham National Bank v. Everett National Bank, 177 Mass. 392. United States v. Chase National Bank, 252 U. S. 485. It is, in effect, that the drawee of a bill of exchange who pays it to a holder in due course cannot recover back the sum so paid upon discovering that the signature of the drawer is forged. This exception to the usual rule respecting money paid under a mistake of fact has been explained by Holmes, C.J., in the second case cited above, at pages 395-6; yet, as was said in First National Bank v. United
So ordered.