23 F. Cas. 230 | U.S. Circuit Court for the District of Indiana | 1877
On the facts here stated the plaintiffs had a remedy against the defendant for its negligence, also against Sackett on his indorsement. There is no privity between Sackett and the defendant. If liable at all, the one is bound by his contract of indorsement while the other is liable as tort feasor. There is no right of subrogation in favor of the defendant against Sackett. Even if the defendant had paid the demand I am not able to see on what ground it could be subrogated to the rights of the plaintiffs against Sackett. So far as the pleadings are concerned Sack-ett was no party to the fraud which was successfully practiced against both the plaintiffs and the defendant. The presumption is that Sackett wras a bona fide holder of the forged draft for value. In fact it was conceded in the argument that Sackett did not participate in the fraud, and that he was induced to sign the draft for accommodation. There is no equity in favor of the defendant against Sackett, and there is no relation of privity between them.
It is further urged by counsel for the defendant that when one person is injured by the fault of another the latter is liable for such damages only as are sustained after the injured party has used reasonable care and precaution to protect himself against the consequences of the negligent or injurious act. The soundness of this proposition cannot be questioned, but the authorities relied on to sustain it do not support the pleas even by analogy.
The defendant admits its negligence but insists that, because the plaintiffs had the genuine indorsement of Sackett, who was and still is solvent, the measure of damages is the amount paid for the dispatch sent by the Peru bank, namely, fifty cents.
If a railroad train is wrecked by the carelessness of a drunken engineer, the injured passengers have two remedies, one against the engineer for the tort, and the other against the company on contract. In an action by a passenger in such a case against
If it be the law that the plaintiffs are damaged only to the amount paid for the dispatch, they holding the genuine indorsement of Saekett, then the forger himself, in an action of tort, would be liable for the amount the plaintiffs paid for the dispatch and no more.
Sackett’s indorsement is worth just as much in the plaintiffs’ hands against the forger as against the telegraph company.
A tort feasor is liable for the damages sustained by the injured party, and that, whether the law gives the plaintiff a remedy against other parties or not. When a wrongdoer is sued he is not allowed to plead to all but nominal damages, that by suing other solvent parties either in an action of tort or on contract the plaintiff can recover full compensation for the injury. Demurrer sustained.