100 P. 1069 | Utah | 1909
The plaintiff alleged in his complaint that on March 1, 1904, the Southern Pacific Company, for services rendered, issued and delivered to him its pay check, payable to his order, and drawn on the treasurer of the Southern Pacific Company, in the sum of $63.20; that on March 20th the check was stolen from or lost by the plaintiff and his in-dorsement forged thereon; that the check afterwards came into the possession of the defendant, who collected thereon the sum of $63.20; that the plaintiff received no part of the money evidenced by the check; and that the defendant, by reason of. the premises,. became indebted to the plaintiff in such sum, no part of which had been paid. The defendant
Tbe plaintiff testified that be was a.n employee — a fireman —of tbe Southern Pacific Company at Montello, Nev.; that tbe check was given him on March 23rd, 1904, by the clerk of the roundhouse foreman at Montello for sendees rendered by him, and that be put tbe check in bis pocketbook;. that night when be retired — in a bunk car — be placed bis pants between himself and tbe wall, with tbe pockets under tbe pillow; that, when be arose tbe next morning, be found bis pants across tbe foot of the bed, and tbe pocketbook and check gone; that- be bad not indorsed tbe check, and that tbe indorsement on tbe check purporting to be bis indorsement was a forgery, and that be bad not sold, cashed, or negotiated tbe check in any manner; that be did not know who took tbe check from him, nor who wrote or indorsed bis name on it; that, when be missed tbe check, be notified bis foreman, and that be and tbe foreman wrote out a message and left it at tbe operator’s office at Montello on March 25th, and that be also wrote a letter to the master mechanic and to the superintendent of tbe Salt Lake Division notifying them that tbe check was stolen. Tbe check itself was exhibited to tbe plaintiff, who identified it, and testified that tbe indorsement thereon purporting to be bis indorsement was not bis signature, and was a forgery. He further testified that be did not know' tbe check bad been paid until about a year after it bad been stolen, at which time it was shown him by a special detective of tbe Southern Pacific ■Company, who then'asked him whether it was tbe one that
The foregoing is, in substance, all of plaintiff’s evidence. When he rested, the defendant also rested without offering any evidence. The court found the facts as follows: That the check was delivered to the plaintiff on March 23d at Montello; that it was stolen from him on March 25th; that the plaintiff had not indorsed the check, nor had he authorized anybody to do so; that the plaintiff had received no part of the money evidenced by it; that the defendant “became indorsee and indorser of said check on or about the 1st day of April, 1904, at Ogden City, Utah; that said check, indorsed with, the name of the payee, was transferred and delivered to said defendant on or about April 1st, 1904, by the holder, without any notice of any infirmity, and on the same day the said defendant indorsed the said check to the Commercial' National Bank of Ogden, who thereupon indorsed it to the Bank of California, at San Francisco, Cal., which said last-named bank on, April 4th, 1904, presented said check to the drawee, who paid it and took possession of it, and thereafter, to wit, in the spring of 1905, returned it to the plaintiff herein, who thereupon learned for the first time that it had been paid by the drawee, and who immediately intrusted an agent of the said Southern Pacific Company with the collection thereof;' that the plaintiff failed to present the check to the Southern Pacific Company for payment, and failed to demand payment of it or from any indorser thereon; that neither the defendant nor any subsequent indorser thereon had knowledge or notice of any de-
He contends that the court erred in its findings and'conclusions and in entering judgment for the defendant upon the facts found. We think the judgment is wrong. . It is contrary to the findings and to the evidence. It is shown beyond dispute that the check is payable to the order of the plaintiff, that it was stolen from him, and that the indorsement of his name thereon was a forgery. The court so found. Under those conditions the check came into the hands of the defendant, who admitted in his answer that he “collected thereon the sum of $63.20,” the amount of the check. While the findings show that the cheek was delivered to the defendant without notice of any infirmity, yet there is no evidence to support it, and neither the evidence nor the findings show that he paid a valuable consideration for the check. The law generally is to the effect that, “although the robber or finder of a negotiable instrument can acquire no title against the real owner, still if it be indorsed in
The judgment of the court below is therefore reversed, and the cause remanded for a new trial. Costs to appellant.