Judge v. West Philadelphia Title & Trust Co.

• Decision Date: 19 November 1917
• Docket Number: 211-1916
• Citation: 68 Pa.Super. 310
• Parties: Judge v. West Philadelphia Title & Trust Co., Appellant
• Court: Pennsylvania Superior Court

68 Pa.Super. 310

Judge v. West Philadelphia Title & Trust Co., Appellant

No. 211-1916

Superior Court of Pennsylvania

November 19, 1917

Argued November 3, 1916 [Syllabus Matter]

Appeal by defendant, from judgment of C.P. No. 4, Philadelphia Co.-1913, No. 2896, on verdict for plaintiff in case of John P. Judge v. West Philadelphia Title and Trust Company.

Assumpsit to recover the amount of two checks alleged to have been wrongfully charged to the plaintiff's account as a depositor. Before Carr, J.

At the trial it appeared that the plaintiff was a depositor in the defendant's bank, which also had a deposit account of Walter H. Hays, Secretary. Upon September 21, 1912, Zelley who was not known to the defendant, presented for payment two checks purporting to have been drawn by Hays, Secretary, one for $ 300, to the order of Biesantz and endorsed by him, and the other for $ 150 to the order of Sullivan and endorsed by him. Zelley had also endorsed them.

W. H Hoot, the paying teller of the defendant company, testified as follows, as to what occurred when the checks were presented:

" A. -- These checks were presented at my window by Mr. Zelley, and looking them over I said, 'the man's account is good for the amount, but I don't know you, nor do I know the endorsement on the back, and before I could cash them I would have to have them endorsed by somebody who had an account here, who would be responsible for them.' He said, 'Will Mr. Judge do?' I said, 'Yes, if Mr. Judge will endorse them and assume the responsibility, I will cash them.' He went out and came back shortly with Mr. Judge, and Mr. Judge said, 'Mr. Hoot, are these checks of Mr. Hays's any good?' I said, 'The man's account is good for the amount, but I don't know the endorsement,' and I said, 'If you will endorse them and stand for the whole thing, that is up to you, I am not familiar with the endorsement, I will cash them. The responsibility will be with you.' I have a clear recollection of making that statement.

" Q. -- When Mr. Judge came in can you remember just exactly what he said to you when he came in or in effect what he said to you?

" A. -- Mr. Judge wanted to know whether this man's account was good for the amount, and I said, 'Yes,' and I said, 'I want the endorsement of someone on the back there who will stand for the check.'

" Q. -- What was said about the identification of Mr. Zelley?

" A. -- Nothing was said as to the question of identification, to my recollection, whatever, it was a question of endorsement on the back, someone who would be responsible for the checks."

The plaintiff claimed that he endorsed the check merely for the purpose of identifying Zelley. He testified to the transaction as follows:

" We walked up to the paying teller, and I asked Mr. Hoot, the paying teller -- that is Mr. Hoot sitting there -- I asked him if the checks were all right, and he told me the checks were right, they had the money to pay them, but they didn't know Zelley. I told him I had known Zelley for three years and a half. 'Well,' he says, 'Put your name on these checks and identify him, and I will give him the money.' I walked to the desk and put my name on the checks and handed them to Zelley, and left."

The checks turned out to be forgeries, and of this fact Judge was notified.

The court gave binding instructions for plaintiff.

Verdict and judgment for plaintiff for $ 524.50. Defendant appealed.

Error assigned was in giving binding instructions for plaintiff.

Alex. Simpson, of Simpson, Brown & Williams, for appellant, cited: Fulweiler v. Hughes, 17 Pa. 440; Gaul v. Willis, 26 Pa. 259; Levy v. Bank of U.S. 1 Binn 27; Commercial Nat. Bank v. Henninger, 105 Pa. 496; Union Nat. Bank v. Franklin Nat. Bank, 249 Pa. 375; Young's Est., 234 Pa. 287; Wisner v. First Nat. Bank of Gallitzin, 220 Pa. 21.

William A. Carr, with him John M. Hill, W. Horace Hepburn and Sidney L. Krauss, for appellee, cited: Iron City Nat. Bank v. Fort Pitt Nat. Bank, 159 Pa. 46; Tradesmen's Nat. Bank v. Third Nat. Bank, 66 Pa. 435; Union Nat. Bank v. Franklin Nat. Bank, 249 Pa. 375.

Before Orlady, P. J., Porter, Head, Trexler and Williams, JJ.

OPINION

PORTER, J.

John P. Judge, the plaintiff, was a depositor in the defendant's bank. Upon September 21, 1912, Zelley, who was not known to the defendant's teller, presented for payment two checks, purporting to have been drawn by Hays, Secretary, one for $ 300, to the order of Biesantz, and the other for $ 150, to the order of Sullivan, both endorsed by the payees and Zelley. The teller refused to cash the checks unless they were endorsed by a depositor of the bank and at Zelley's request, Judge endorsed both checks. The endorsements were unrestricted. The bank discovered that the checks had been forged, and promptly notified the plaintiff, Judge, and charged the amount of the checks against his account. The present suit is brought by Judge to recover from the bank the amount so charged to his account. The court below gave binding instructions for the plaintiff. In the opinion filed, it rested its conclusion upon the interpretation of the tenth section of the Act of April 5, 1849, P. L. 426. That section reads as follows: " That whenever any value or amount shall be received as a consideration in the sale, assignment, transfer or negotiation, or in payment of any bill of exchange, draft, check, order, promissory note or other instrument, negotiable within this Commonwealth by the holder thereof, from the endorsee or endorsees, or payer or payers of the same, and the signature or signatures of any person or persons, represented to be parties thereto, whether as drawer, acceptor or endorser, shall have been forged thereon, and such value or amount by reason thereof erroneously given or paid such endorsee or endorsees, as well as such payer or payers respectively, -- shall be legally entitled to recover back from the person or persons previously holding or negotiating the same, the value or amount so as aforesaid given or paid by such endorsee or endorsees or payer or payers respectively, -- to such person or persons, together with lawful interest thereon from the time that demand shall have been made for repayment of the same."

Inasmuch as the money was paid to Zelley and not to Judge, the last endorser, the court held that no recovery could be had under the section above quoted; that in order to recover the party from whom the money is sought must have been the actual recipient of it; that the physical act involved in the paying of the money determined the application of the section. We think this is too narrow a construction of this act. The act declares that anyone paying money on a forged instrument may recover it back from the person or persons previously holding or negotiating the same. Any person holding or negotiating the paper is liable. The thing recoverable is the amount paid to such person or persons. The last part of the section has reference to the money paid, but it does not, we think, limit the liability of the persons previously...