65 F.2d 831 (D.D.C. 1933), 5780, District Nat. Bank of Washington, D.C., v. Washington Loan & Trust Co.

Docket Nº:5780.
Citation:65 F.2d 831
Party Name:DISTRICT NAT. BANK OF WASHINGTON, D. C., v. WASHINGTON LOAN & TRUST CO.
Case Date:May 29, 1933
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 831

65 F.2d 831 (D.D.C. 1933)

DISTRICT NAT. BANK OF WASHINGTON, D. C.,

v.

WASHINGTON LOAN & TRUST CO.

No. 5780.

Court of Appeals of the District of Columbia.

May 29, 1933

         Argued May 8, 1933.

         Appeal from the Supreme Court of the District of Columbia.

         Roger J. Whiteford and P. H. Marshall, both of Washington, D. C., for appellant.

         Arthur Peter and George P. Hoover, both of Washington, D. C., for appellee.

         Before MARTIN, Chief Justice, and VAN ORSDEL, HITZ, and GRONER, Associate Justices.

         MARTIN, Chief Justice.

         An appeal from a judgment upon a verdict entered by direction of the trial court upon motions made by both parties for a directed verdict.

         The evidence in the case tends to prove that in September, 1926, John J. Madden and Patrick J. Wholihan were brothers-in-law residing in the city of Washington. Wholihan was a widower and made his home with Madden, and was the owner of certain real estate situate within the city. In that month Madden, fraudulently representing himself to be Wholihan, applied under that name to the Equitable Co-operative Building Association of Washington for a loan of $5,000, to be secured by a deed of trust upon the property owned by Wholihan. Madden, professing to be Wholihan, stated that he was a widower, and gave the post office address at which both Wholihan and Madden received mail. The officers of the association were not acquainted with either Madden or Wholihan, but they 'verified that Mr. Wholihan was at the same address given by Mr. Madden, and they tallied exactly.' Thereupon a loan of $3,500 was made, secured by a bond and deed of trust upon Wholihan's property, both purporting to be signed by Wholihan, whereas in fact Wholihan's name was signed upon them by Madden. Wholihan knew nothing of the transaction and had not in any manner authorized it.

         In the settlement of the loan, the association mailed to Wholihan at the address given by Madden, which had been verified by the settlement clerk, a statement of the loan adjustment and a check of the association drawn upon the Washington Loan & Trust Company, payable to the order of Wholihan for the sum of $3,447.50, which as the net amount of the loan. Upon delivery of this letter at the address of both parties Madden furtively obtained possession of it and thus secured possession of the check. On the next day he went to the association's office and there indorsed the name of Wholihan upon the check, and asked the settlement clerk to cash it. The clerk refused to cash the check, and told Madden that he should put the check through his own bank in the regular way.

Page 832

          Madden then went to the District National Bank, where he had been a depositor for many years, and where he was well known under his proper name. At this time Madden was indebted to the bank in the sum of more than $12,000, which was then in arrears. Madden presented the check to the assistant cashier and told him he wanted to get it cashed. The assistant cashier looked...

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