28 A. 195 (Pa. 1893), 86, Iron City Nat. Bank v. Fort Pitt Nat. Bank
|Citation:||28 A. 195, 159 Pa. 46|
|Opinion Judge:||MR. JUSTICE MITCHELL:|
|Party Name:||Iron City Nat. Bank v. Fort Pitt Nat. Bank, Appellant|
|Attorney:||Thomas Patterson and P. C. Knox, James H. Reed and E. Z. Smith with them, for appellant. Johns McCleave, D. T. Watson with him, for appellee.|
|Judge Panel:||Before STERRETT, C.J., GREEN, McCOLLUM, MITCHELL and THOMPSON, JJ.|
|Case Date:||December 30, 1893|
|Court:||Supreme Court of Pennsylvania|
Argued: October 24, 1893
Appeal, No. 86, Oct. T., 1893, by defendant, from order of C.P. No. 3, Allegheny Co., Feb. T., 1893, making absolute rule for judgment for want of sufficient affidavit of defence.
Assumpsit to recover back money paid on forged check. Plaintiffs' statement averred that on Dec. 19, 1892, defendant was the holder of a certain check or bill of exchange, dated Dec. 17, 1892, purporting to be drawn by the firm of G. Dice & Co. on the Iron City National Bank of Pittsburgh for the sum of $852. This check, on Dec. 17, 1892, was deposited by the payees thereof, Messrs. Gutman & Howard, with defendant bank. Defendant was not then a member of the Pittsburgh Clearing House Association of Banks, but it cleared through the Citizens' National Bank of Pittsburgh. Defendant indorsed the check and delivered it to the Citizens' National Bank as its agent, and the Citizens' National Bank, acting as agent of defendant bank, presented the check on Dec. 19, 1892, to the Iron City National Bank of Pittsburgh for payment, and the Iron City National Bank paid the check to the Citizens' National Bank, acting as agent of defendant bank, and the sum so paid, $852, was placed to the credit of defendant bank by its said agent.
On Dec. 24, 1892, the president of defendant bank called upon plaintiff bank and inquired as to said check, and when it was paid and whether it was good, and thereupon the cashier of plaintiff bank produced the check, and the cashier and the president of defendant bank called on that day upon G. Dice & Co., the alleged drawers of the check, and were informed by them that the signature of the drawers of the check was forged. This was the first information or knowledge plaintiff had of the forgery, and immediately and on Dec. 24, 1892, plaintiff demanded repayment of the money from defendant bank, and offered to return to it said check. This demand and offer were renewed Dec. 27, 1892, and to each the defendant bank made no definite reply, saying it would answer later. On Thursday, Jan. 5, 1893, defendant bank refused to repay said money or any part thereof.
The affidavit of defence averred that "plaintiff bank was negligent in making payment of said check when, as alleged, the signature of the drawer thereof, a depositor in plaintiff bank, was forged and counterfeited; and that said plaintiff bank was further negligent in not giving due and timely notice of the forgery of said check, and that said notice, so as aforesaid given, was not within a reasonable and proper time; and that by reason of the said negligence and laches on the part of said plaintiff bank the said plaintiff is not entitled to recover the amount of said check or any part thereof from the defendant bank." The affidavit further stated that Gutman & Howard deposited $1,957 with defendants on Dec. 17, 1892, which included the forged check, and that they drew out $1,800 on Dec. 19, 1892.
Rule for judgment absolute. Defendant appealed.
Error assigned was above order.
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