82 Pa. Super. 211 | Pa. Super. Ct. | 1923
Argued October 5, 1923. Plaintiff brought assumpsit on a negotiable instrument which defendant had paid. Defendant filed an affidavit of defense, raising the legal question "that plaintiff's statement of claim is insufficient in law ....." and set it down for hearing under section 20 of the Practice Act. After hearing, the court below entered judgment for defendant. Plaintiff appealed.
Our inquiry must be "whether upon the facts averred it [the statement] shows, as a question of law, that plaintiff is not entitled to recover": Rhodes v. Terheyden,
The instrument, dated July 22, 1922, was drawn on defendant by its assistant treasurer, and contains the words "Pay to the order of Substantial Building and Loan Association $1,050.97......" Plaintiff avers that sum of money was paid to defendant, to be by it paid to plaintiff in satisfaction of a mortgage. The statement also avers: *213
"4. Chas. Gesing, Jr., treasurer of plaintiff, was authorized to deposit said check in the bank account of plaintiff but had no authority to have said check cashed and receive any of the proceeds thereof.
"5. Upon receipt of said check the said Chas. Gesing, Jr., satisfied said mortgage as attorney in fact for plaintiff.
"6. The said Chas. Gesing, Jr., endorsed said check as above and the same was cashed on or about August 8, 1922, by Northern Central Trust Co. who paid the proceeds thereof to the said Chas. Gesing, Jr., and no part of the same was ever paid to or received by the plaintiff.
"7. The indorsement of plaintiff's name by the said Chas. Gesing, Jr., on said check was a forgery, and was never authorized or ratified by plaintiff."
The instrument, with endorsements, is set forth at length in the statement. On the back of it appear the following:
"If this check be endorsed by any person on behalf of the payee, certified copy of an acknowledged power of attorney, giving authority therefor, must be attached to this check, or it will not be paid.
We have, then, a declaration of liability on a negotiable instrument which the statement shows was paid by defendant to one who had become a holder of it in due course by its negotiation by plaintiff, or by its agent with apparent authority to negotiate it, and no averment that defendant had notice before payment to such holder, that plaintiff's treasurer, after making the authorized endorsement, exceeded his authority then to deal with the check.
Defendant's obligation was to pay to plaintiff or its order. When presented for payment, the check bore endorsements apparently sufficient to justify payment, and defendant accordingly discharged its obligation. Certainly, without some allegation that before payment, defendant had timely notice of the treasurer's breach of duty to plaintiff, there would appear to have been no obligation on defendant to withhold payment when demanded.
In Rhodes v. Terheyden,
As plaintiff's statement is defective in the respect indicated, but curable by amendment, if the facts in plaintiff's possession justify application to amend, we are of opinion that this is not such clear case as to justify summary judgment, but that, on the contrary, plaintiff should have leave to apply to the court below to amend, if the facts justify such application, conditioned, of course, that in default of application to amend within a reasonable time to be specified in the order, judgment of non pros will be entered as suggested in Rhodes v. Terheyden, supra.
Judgment reversed with a procedendo.