398 F.2d 779 (5th Cir. 1968), 24137, First Nat. City Bank v. Compania de Aguaceros, S. A.

Docket Nº:24137.
Citation:398 F.2d 779
Party Name:FIRST NATIONAL CITY BANK, Appellant, v. COMPANIA de AGUACEROS, S.A., Appellee.
Case Date:March 11, 1968
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 779

398 F.2d 779 (5th Cir. 1968)

FIRST NATIONAL CITY BANK, Appellant,

v.

COMPANIA de AGUACEROS, S.A., Appellee.

No. 24137.

United States Court of Appeals, Fifth Circuit.

March 11, 1968

Rehearing Denied March 27, 1968.

Page 780

Richard B. Montgomery, Jr., New Orleans, La., L. S. Carrington, Balboa, Canal Zone, Arnold Y. Claman, New York City, Guillermo Jurado, Republic of Panama, Bigham, Englar, Jones & Houston, New York City, Montgomery, Barnett, Brown & Read, New Orleans, La., for appellant, First National City Bank.

Henry L. Newell, Balboa, Canal Zone, Harry McCall, Jr., Gibbons Burke, Chaffe, McCall, Phillips, Burke, Toler & Hopkins, New Orleans, La., for appellee, Compania de Aguaceros, S.A.

Before RIVES, GOLDBERG and AINSWORTH, Circuit Judges.

GOLDBERG, Circuit Judge:

This case concerns the liability vel non of the First National City Bank of New York (Bank) for having cashed forged checks of the Compania de Aguaceros, S.A., (Depositor). The villainous artful forger, Carlos Echeverria, has clouded the equities between the two protagonists not only by his consummate calligraphic talents but also by his position as the Depositor's agent and auditor in Panama. The district court below discarded a relevant Panamanian statute as being vague and inconclusive, found the proximate cause of Echeverria's success to be the Bank's negligence, and ruled for the Depositor. Compania de Aguaceros, S.A. v. First National City Bank, D.C. C.Z.1966, 256 F.Supp. 658. We find unequivocal and controlling sustance in said statute and reverse.

The Depositor was a Panamanian corporation engaged in the sale of various airlines and aircraft throughout Latin America. Although the Depositor maintained a checking account with the Bank's Panamanian branch, Joseph M. Silverthorne, who was the Depositor's organizer and treasurer, and who was the only executive authorized to sign checks on the Panamanian Bank, resided in Tegucigalpa, Honduras. Panamanian law required the Depositor to maintain a resident agent in Panama, and Silverthorne engaged the auditing firm of Farca, S.A. (Farcasa). In 1962 Echeverria bought out the owner of Farcasa and thus placed himself in the position of trust from which he later gamed his gains.

The nine forged checks on the Depositor's account totaled $44,000 and covered the period from October 11, 1963, to February 25, 1964. Each check was returned by the Bank, with the statement for the month in which it was paid, on or about the first of the following month. However, because Farcasa received the canceled checks and statement, Silverthorne remained an innocent abroad and no protest was made prior to March 20, 1964.

On March 19, 1964, Silverthorne returned to Panama, having been absent since October 29, 1963. He went to the Bank to establish a letter of cerdit and, while there, discovered that the balance in his company's account was substantially lower than it should have been. Because Echeverria's forgeries were skillfully done, Silverthorne was unable to determine immediately which checks he himself had not signed. With the Bank's help, however, he did trace the forged checks to Echeverria. According to the Bank, Echeverria was less artful at the casino than he was in the auditor's office, and so the two victims of the fraud must contest the ultimate loss.

Page 781

At trial both parties stipulated the existence of the following three Panamanian statutes:

Article 989 of the Panama Commercial Code:

'Article 989.-- Banks are required to furnish their customers their accounts current at least eight days after the end of each quarter of liquidation period agreed upon, requesting their written conformity thereof, and the latter, or any comments that may be in order with respect thereto, must be presented within five days.

'Should a customer fail to reply within said period, his account will be held as admitted and the debit or credit balance shall be definitive as of the date of such account.'

Article 23 of the Negotiable Instruments Law of Panama:

'Article 23.-- When a signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative, and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party, against whom it is sought to enforce such right, is precluded from setting up the forgery or want of authority.'

Article 9 of the Civil Code of Panama:

'Article 9.-- When the meaning of the law is clear, its literal content shall not be discarded under pretext of questioning its true spirit or intention. However, for the purpose of interpreting any obscure expression of law it is permissible to have recourse to the intention or spirit clearly manifested in the law itself or in the trustworthy history of its institution.'

The trial judge, in his conclusions of law, found: '5. Article 989 is ambiguous and needs interpretation for its exact meaning cannot be determined from its language.' 256 F.Supp. at 663. Then, while reviewing the testimony of three expert witnesses, he concluded: '6. The experts are divided on the effect that is given in Panama to the provisions of Article 989 but it seems that the proper interpretation is that it is not peremptory and establishes only a prima facie situation which is subject to rebuttal.' 256 F.Supp. at 663. In the remainder of his opinion the trial judge exculpated Silverthorne and placed the determinative blame on the Bank. He awarded to the Depositor the sum of $44,000 plus interest from March 20, 1964.

We will not review the trial court's finding of negligence because we find that Panamanian Article 989 clearly precludes the Depositor's recovery.

I. Panamanian Law, Question of Law or Question of Fact?

This first issue, a procedural one, is brought to light by the Depositor's brief. The first sentence of that...

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