Marks v. Anchor Sav. Bank
| Decision Date | 03 January 1916 |
| Docket Number | 236 |
| Parties | Marks, Appellant, v. Anchor Savings Bank |
| Court | Pennsylvania Supreme Court |
Argued October 28, 1915
Appeal, No. 236, Oct. T., 1915, by plaintiff, from judgment of C.P. Allegheny Co., April Term, 1914, No. 1808, for defendant, non obstante veredicto in case of L. J. Marks v Anchor Savings Bank. Affirmed.
Assumpsit to recover amount paid on forged endorsement of check. Before MACFARLANE, J.
The facts appear by the opinion of the Supreme Court.
Verdict for plaintiff for $3,243.80 and judgment thereon.
The court subsequently entered judgment for defendant n.o.v Plaintiff appealed.
Error assigned was in entering judgment for defendant n.o.v.
The assignment of error is overruled, and the judgment is affirmed.
S. A. Schreiner, of Schreiner & Loeffler, with him I. L. Giffen, for appellant. -- Under the circumstances the delay in notifying the bank of the forgery does not preclude the plaintiff from recovering: Schnable v. Hanover National Bank of the City of New York, 137 N.Y.S. 724.
John D. Brown, with him John E. Winner, for appellee. -- Plaintiff knew or should have known of the fraud forty days before he notified the bank thereof and is precluded by such delay in notification from recovering: Lesley v. Ewing, 248 Pa. 135; McNeely Co. v. Bank of North America, 221 Pa. 588; Leather Manufacturers National Bank v. Morgan, 117 U.S. 96; Dana v. National Bank of the Republic, 132 Mass. 156; Cooke v. United States, 91 U.S. 389; Houser v. National Bank of Chambersburg, 27 Pa.Super. 613; Snyder v. Corn Exchange National Bank, 221 Pa. 599.
Before BROWN, C.J., MESTREZAT, POTTER, MOSCHZISKER and FRAZER, JJ.
This action was instituted to recover the amount of a certified check which the plaintiff alleged was wrongfully paid by the defendant bank on a forged endorsement of his signature as payee. The verdict was for the plaintiff, but the court below entered judgment non obstante veredicto in favor of the defendant; hence this appeal.
On August 6, 1913, one Samuel Bleier, who at that time was indebted to the plaintiff, made a promissory note to the latter's order for $3,000.00, due four months after date. The plaintiff endorsed and returned the note to Bleier for the purpose of having it discounted, and he subsequently procured its discount by one Robert E. Price, who gave his check therefor, in the sum of $2,940.00, payable to the order of the plaintiff and duly certified by the defendant bank. Bleier took this check to the plaintiff and requested him to endorse it, which he refused to do; but on that occasion he saw the check was certified to his order, although he failed to observe the name of the drawer or drawee. The next day, August 7, 1913, the check, endorsed with what purported to be the plaintiff's signature, was deposited by Bleier in the defendant bank to the credit of the Victor Banking Company, an institution of which he was then the cashier. Some time after the plaintiff had refused to endorse the check, Bleier told him it had been returned to its maker and the note destroyed; but in the beginning of the following January, if not earlier, the plaintiff had definite knowledge the note was still in existence and that its holder was insisting it had been properly discounted for value; more than this, on or before January 2, 1914, the plaintiff knew who drew the check, and further that, after the day when he had seen it, certified to his order as payee in Bleier's possession, that gentleman had become a defaulter. Notwithstanding his knowledge of all these facts, the plaintiff did not inquire of Mr. Price, its maker, concerning the check, nor did he take any other means of ascertaining its whereabouts or the name of the institution upon which it was drawn, either for his own protection or that of the certifying bank. Finally, however, on February 9, 1914, at a meeting of arbitrators, in a suit against the plaintiff to recover on the discounted note, the check in question, with the false and fraudulent endorsement thereon, was produced; but even then the plaintiff waited till February 12th before informing the defendant bank of the forgery, and it had no notice or suspicion that anything was wrong until that date. There was some proof that Bleier, who was not called as a witness, had absconded, but just when this occurred did not appear.
The defendant contended that the plaintiff had authorized Bleier to endorse the check and to receive the proceeds; but we assume this not to be true, for the present appeal must be determined alone on the evidence produced by the plaintiff and the facts as we have given them are taken entirely from his side of the case. It is established in law that the certification of a check transfers the funds represented thereby from the credit of the maker to that of the payee, and that, to all intents and purposes, the latter becomes a depositor of the drawee bank to the amount of the check, with the rights and duties of one in such a relation: Girard Bank v. Bank of Penn Township, 39 Pa. 92, 99; Central Guar. Tr. & Safe Dep. Co. v. White, 206 Pa. 611, 614. In several recent cases, we have discussed the duty of a depositor when a forgery has been perpetrated in connection with a check to which he is a party. In Myers v. Southwestern Nat. Bk., 193 Pa. 1, 11, 12, where a confidential clerk committed the forgeries, we said that the depositor could have gained knowledge of the fraud had he examined his cancelled checks and made proper comparisons, etc., and we held that, since he did not perform these duties, and thus ascertain the facts which he could have discovered and imparted to the bank, there could be no recovery. In McNeely Co. v. Bank of North America, 221 Pa. 588, 594, the present Chief Justice, after an exhaustive study of the whole subject, speaking for this court held that, when a depositor fails promptly to notify his bank of a forgery, he must be regarded as having withheld from it a substantial right, without regard to what might or might not have resulted from a prompt exercise of that right, for it is sufficient to know that such delay on the part of a depositor might well prejudice the bank, and it is not necessary for the latter to prove that it in fact did work material harm. In Connors v. Old Forge Discount & Dep. Bk., 245 Pa. 97, 101, a depositor sued his bank to recover the amount of a check paid on a forged endorsement of the payee's name. A nonsuit was entered because of a failure promptly to inform the defendant of the mispayment. It appeared that the depositor had substantial grounds for suspicion, and actually did suspect the fraud about June 23d, or 42 days before he sent word to the bank, but it did not appear that he was certain of the forgery until the fourth day before such notice. In sustaining the nonsuit, we said: ...
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