124 F.2d 484 | 10th Cir. | 1941
The United States issued in due form an adjusted-service certificate to Edwin War-en, herein called the veteran. Sometime
The check was issued and mailed in the regular course of business of the United States in dealing with veterans holding adjusted-service certificates and seeking loans upon them. The rights of the holder of such a check as against the United States are not different from those accorded by commercial practice to checks of private individuals. United States v. Guaranty Trust Co., 293 U.S. 340, 55 S.Ct. 221, 79 L.Ed. 415, 95 A.L.R. 651.
Section 11322, Oklahoma Statutes 1931, 48 Okl.St.Ann. § 43, provides that a forged or unauthorized signature to a negotiable instrument is wholly inoperative and confers no right of retention, discharge, or enforcement of payment, unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority. The statute is substantially identical with section 23 of the Uniform Negotiable Instruments Act, and is merely declaratory of the common law.
The United States contends that the endorsement on the check by the imposter was a forgery, and that the two banks are therefore liable on their respective endorsements in each of which all prior endorsements were guaranteed. The imposter or fraudulent impersonation rule has been frequently considered in its application to a variety of facts. With few exceptions, it is held that the drawer of a
But, as between the United States and the bank at Prague, the imposter first established contact with the bank. The bank became satisfied that he was the veteran and made him a loan, taking the certificate as pledged security. After satisfying the bank in respect to his identity, after negotiating the loan, and after pledging the certificate, when he came to make application to the Administration and was faced with the necessity of establishing his identity to the satisfaction of the Administration, he went to the individual who was both president of the bank and a notary public. That individual signed the certificate appended to the note being given for the loan. He stated in the certificate" that he knew the person applying for the loan to be the veteran named in the certificate, and that the signature on the note was that of such veteran. The certificate was made in the capacity of notary public, and the Administration did not have knowledge of the fact that the person making it was also president of the bank. But in addition to making the certificate for the intended purpose of giving assurance to the Administration that the applicant was the veteran, the bank released the certificate then held as collateral in order that it might be deposited with the Administration as security for the loan being sought; the certificate was attached to the note; and together the two were submitted to the Administration. The address
Both banks pleaded the local statute of limitations, and laches. The check was issued, endorsed, and paid in 1932; and no demand for repayment was made until 1938. Ordinarily a right of action of the United States is not subject to a state statute of limitations. United States v. Thompson, 98 U.S. 486, 25 L.Ed. 194; United States v. Nashville, Chattanooga & St. Louis Railway Company, 118 U.S. 120, 6 S.Ct. 1006, 30 L.Ed. 81; Chesapeake & Delaware Canal Company v. United States, 250 U.S. 123, 39 S.Ct. 407, 63 L.Ed. 889; Guaranty Trust Co. v. United States, 304 U.S. 126, 58 S.Ct. 785, 82 L.Ed. 1224. And where the United States, acting in its governmental capacity, has the right to assert a claim, either by virtue of ownership from its inception or by acquisition, and exerts its right of assertion, it cannot be deemed to have abdicated its governmental authority in such manner as to become subject to a local statute imposing a limitation of time upon enforcement. United States v. Summerlin, 310 U.S, 414, 60 S.Ct. 1019, 84 L.Ed. 1283. Nor is a cause of action asserted by the United States in such capacity subject to the defense of laches. United States v. Kirkpatrick, 9 Wheat. 720, 6 L.Ed. 199; United States v. Thompson, supra; United States v. Insley, 130 U.S. 263, 9 S.Ct. 485, 32 L.Ed. 968; Guaranty Trust Co. v. United States, supra.
The judgment is affirmed as to the appellee Tradesmens National Bank of Oklahoma City; as to the appellee First National Bank of Prague it is reversed and the .cause remanded for further proceedings not inconsistent with the views herein expressed.