46 A. 420 (Pa. 1900), 285, Land Title & Trust Co. v. Northwestern National Bank
|Citation:||46 A. 420, 196 Pa. 230|
|Opinion Judge:||MR. JUSTICE FELL:|
|Party Name:||The Land Title and Trust Company v. Northwestern National Bank|
|Attorney:||Richard C. Dale, with him Alfred Moore, for appellant. John G. Johnson, for appellee.|
|Judge Panel:||Before GREEN, C.J., MITCHELL, DEAN, FELL, BROWN and MESTREZAT, JJ. DEAN|
|Case Date:||May 21, 1900|
|Court:||Supreme Court of Pennsylvania|
Argued: January 16, 1900
Appeal, No. 285, Jan. T., 1899, by defendant, from judgment of C.P. No. 2, Phila. Co., June T., 1898, No. 748, on verdict for plaintiff, in case of the Land Title and Trust Company v. Northwestern National Bank. Reversed.
Assumpsit to recover the amount paid on a check, the indorsement of which was forged.
The facts appear by the opinion of the Supreme Court.
The court gave binding instructions for plaintiff.
Verdict and judgment for plaintiff for $5,376.74. Defendant appealed.
Error assigned was in giving binding instructions for plaintiff.
The judgment is reversed.
While we do not question that as between the depositor and the bank paying the check, the bank is not permitted to charge against the account of the depositor the amount of a check paid upon a forged indorsement when issued and presented in the regular course of business, and also that the bank so paying such checks is entitled to recover from the party presenting it the amount thereof it the claim be made with due diligence, it is equally well settled that in either of these cases the right of recovery may be barred by proof of negligence in the plaintiff, or such act outside of the ordinary course of business as to take the case out of the ordinary rule. The facts connected with the issue of this check do take it out of that ordinary rule: Iron City Nat. Bank. v. Fort Pitt Nat. Bank, 159 Pa. 46; Myers v. Southwestern Nat. Bank, 193 Pa. 1; Rick v. Kelly, 30 Pa. 527; Ritchie v. Summers, 3 Yeates, 531.
The check upon the appellee was not indorsed by the party in whose favor it was drawn.
The action of the appellant was not induced by anything known to it, done by the appellee.
[196 Pa. 232]
The fraudulent transaction which gave rise to this litigation may be briefly stated. Dr. Herman S. Bissey was the owner of premises No. 2352 North Broad street, Philadelphia, which he wished to sell. A man who gave his name as Ashley called on Dr. Bissey and under the pretense of desiring to purchase the property got possession of the title papers, and took them to a responsible conveyancer to whom he applied for a loan of $5,000 to be secured by a mortgage of the property. The conveyancer, believing the man to be Dr. Bissey and the owner of the premises, negotiated the loan. The mortgagee, desiring title insurance by the Land Title and Trust Company, deposited with it the amount of the loan to be paid to the mortgagor when a valid mortgage should be executed. When the matter [196 Pa. 233] was ready for settlement Ashley went with his conveyancer to the office of the company and was there introduced to the settlement clerk as Dr. Bissey. He signed the mortgage, Herman S. Bissey, acknowledged it before a notary connected with the company, and received from the clerk the company's check drawn on itself to the order of Herman S. Bissey. This check, indorsed Herman S. Bissey, was deposited in the Northwestern National Bank by a person who had opened an account with it as G. B. Rogers, and was collected by the bank of the trust company in the usual course of business; whether Ashley and Rogers were the same person, or different persons who had conspired to defraud the trust company and had opened an account with the bank as a means to that end, or whether Rogers was a person who was innocent in the matter, did not appear at the trial. Dr. Bissey had no knowledge of the mortgage until called on six months later for the interest. All of the parties to the transaction except Ashley and possibly Rogers, if he were a different person, acted in good faith and in that reliance on the good faith of others which is usual in such matters. Ashley by some means induced a well known and reputable conveyancer to believe that he was Dr. Bissey. The business followed the usual routine by which hundreds of such transactions are carried on every day, and nothing occurred during its course to put the other parties on their guard. On discovering the fraud which had been practiced upon it, the trust company notified the bank and demanded the return of the money paid on the check, and on the refusal of the bank brought this suit. At the trial a verdict was directed for the plaintiff.
The case as presented by the plaintiff's declaration is that of the payment by the plaintiff of a check drawn on it by a depositor to the order of a third person whose indorsement was forged, the payment having
been made in reliance upon the subsequent indorsement of the defendant, the ground of liability being that the defendant by its indorsement and presentation warranted the genuineness of the indorsement of the payee, Herman S. Bissey. While by this statement of the case the trust company is considered...
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