Alabama Nat. Bank v. Rivers

• Decision Date: 17 June 1897
• Citation: 22 So. 580,116 Ala. 1
• Parties: ALABAMA NAT. BANK v. RIVERS.
• Court: Alabama Supreme Court

22 So. 580

116 Ala. 1

ALABAMA NAT. BANK v. RIVERS.

Supreme Court of Alabama

June 17, 1897

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Assumpsit by the Alabama National Bank against E. R. Rivers. From a judgment in favor of defendant, plaintiff appeals. Reversed.

The defendant pleaded the general issue and the following additional pleas: First. That, before the commencement of the suit, the amount of the check or bill of exchange sued on was paid to plaintiff by the National Park Bank of New York (the drawee). Second. That, before the commencement of this suit the drawee of the bill of exchange paid the amount thereof to the National City Bank of New York, to which bank plaintiff had indorsed the same. Third. That, after defendant had signed his name on the back of the bill of exchange plaintiff indorsed the same to the National City Bank of New York, and that upon presentation by said holder, the National City Bank, to the drawee, the National Park Bank, the same was paid by said drawee. Fourth. That upon presentation to the drawee, the National Park Bank, the check was paid by said drawee, by giving credit to plaintiff, upon an account existing between plaintiff and the drawee, both being banks which mode of payment was according to the custom of banks. Fifth. That, after the bill of exchange had been indorsed to plaintiff, plaintiff indorsed the same to the National City Bank of New York, which bank paid plaintiff the full sum of said check or bill of exchange. Sixth. That plaintiff had an account with the National City Bank of New York, and forwarded said check to that bank for collection, and that said bank paid to plaintiff the full sum of said check, by crediting the amount thereof to plaintiff in its account with said bank. Seventh. That defendant wrote his name on the back of the bill of exchange at the instance and request of the plaintiff, for the special and sole purpose of attesting the signature of M. Gellhorn, the payee and indorser. The eighth ninth, tenth, eleventh, twelfth, thirteenth, and fourteenth pleas were demurred to; demurrers were sustained; and they are therefore not involved in the appeal. Fifteenth is a plea of payment in full. Sixteenth. That defendant wrote his name on the back of the draft without any consideration passing to him; that he was not the owner or holder of the paper; that the money paid by plaintiff was not paid to him, but all of it was paid to Gellhorn; and that, on presentation of the draft to the drawee, the same was duly paid, and the draft canceled. Seventeenth. That defendant went to plaintiff's bank to identify Gellhorn, the payee, which purpose was known to plaintiff's cashier; that, having done so, plaintiff's cashier asked defendant to put his name on the paper, which defendant refused to do; that said cashier said to defendant that it was a custom of the bank to require this under such circumstances, so that, if any question should come up about irregularity of signature, the bank would know where to find the party who identified the payee, and that being thus led to believe he was putting his name on the paper for the convenience and accommodation of plaintiff, to enable it to preserve evidence of identification, he thereby assumed no liability; that he so signed said check without any knowledge of its being other than genuine; that writing his name was not at the request of Gellhorn, the payee, or for his benefit or accommodation, but was at the special request of plaintiff; that there was no consideration for his assuming any liability. Eighteenth is similar to the seventeenth, except that it alleges that the cashier of plaintiff fraudulently procured his signature, by fraudulently giving this assurance, and inducing the belief as set forth in the seventeenth plea. Nineteenth is similar to the seventeenth, except it alleges that the statement made by the cashier to induce defendant to sign said paper was after said cashier had agreed to cash the check, after the terms had been agreed on, and after the check had been delivered to the plaintiff. The plaintiff demurred to the first, second, third, fourth, fifth and sixth pleas upon the following grounds. (1) That they do not aver that the check was fraudulently altered, as set out in the bill of complaint. (2) They do not allege that the payment of said check was made with the knowledge of the fraudulent alteration thereof. (3) They admit the fraudulent alteration of the check, and the consequent liability of the defendant for the amount paid thereon by plaintiff, without setting out any facts showing a discharge of the defendant from such liability. (4) They do not set up any facts which are a defense to the action. To the seventh plea the plaintiff demurred upon the ground that it seeks to deny the written contract of the defendant. To the fifteenth plea the plaintiff demurred upon the ground that it does not aver that the payments therein mentioned were made by the defendant. To the sixteenth plea the plaintiff demurred upon the grounds (1) that said plea does not allege that plaintiff never paid out money upon the note sued on, upon the defendant's indorsement; (2) because said plea does not set out any facts that any consideration was necessary to bind the defendant on his indorsement; (3) because said plea does not deny that the paper sued on was fraudulently raised from $2 to $2,000; (4) because it does not deny that the defendant was interested in having said check paid by the plaintiff; (5) because it does not aver or show that the defendant never received any of the money paid out by the plaintiff upon said paper; (6) because there are stated in said plea no facts showing a discharge of defendant from his liability. To the seventeenth, eighteenth, and nineteenth pleas plaintiff demurred upon the following grounds: (1) Because said pleas seek to vary the written contract entered into by defendant by indorsing his name on the check; (2) because said pleas do not allege any facts showing that any consideration was necessary to bind defendant on his indorsement; (3) because said pleas do not aver that defendant could not read, and that he signed the paper in ignorance of its contents; (4) because said plea does not aver that the defendant was not interested in having said check paid to Gellhorn; (5) because said pleas do not show that defendant had no beneficial interest in the cashing of said check by plaintiff; (6) because said pleas do not show that defendant's indorsement was not instrumental in inducing plaintiff to cash said draft; (7) because said pleas seek to vary the contract of the defendant entered into by him by his indorsement of the draft sued on. These demurrers were all overruled, and to the overruling of each of the demurrers the plaintiff separately excepted. The material facts of the case are sufficiently stated in the opinion. In the sixteenth cross interrogatory propounded to A. W. Hill whose deposition was used upon the trial, he was asked the following question: "Who was the cashier of the Gate City National Bank on the 23d of February, 1892? Who was assistant cashier?" The plaintiff objected to this cross interrogatory, because the same called for incompetent and immaterial evidence, and moved to exclude the answer thereto, for the reason that the answer was illegal, irrelevant, and incompetent. The court overruled the objection and motion, and to each of these rulings the plaintiff duly excepted. The witness answered that "Edward W. McCandless was cashier, and Lewis Redwine was assistant cashier." Upon the introduction of all the evidence, the court, at the request of the defendant, gave to the jury the following written charge: "If the jury believe all the evidence in this case, they must find a verdict for the defendant." The plaintiff duly excepted to the giving of this charge. There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved.

Lane & White and Mountjoy & Tomlinson, for appellant.

Arnold & Evans, O. W. Underwood, and J. A. Mitchell, for appellee.

BRICKELL C.J.

This was an action instituted by the Alabama National Bank appellant, against E. R. Rivers, appellee, to enforce the latter's liability as an accommodation indorser of a check or draft, which had been purchased from the apparent payee upon appellee's indorsement, and which had been raised from $2 to $2,000 between the date of its issue and the purchase by appellant. On February 23, 1892, the Gate City National Bank of Atlanta, Ga., issued its check or draft on the National Park Bank of New York for the sum of $2, payable to the order of Thomas Hall. Subsequently the draft was fraudulently altered by changing the name of the payee from "Thomas Hall" to "M. Gellhorn," and changing the amount from "two dollars" to "two thousand dollars," and punching or cutting the figures "2,000" in the body of the draft. The signature was not changed in any respect. On February 25, 1892, Rivers, who was a customer of and well known to the plaintiff, went to the bank with said Gellhorn, and, leaving the latter outside, asked the cashier whether he wanted any New York exchange, stating that a friend of his had some, and that he would bring him in. Receiving an affirmative reply, he called in and introduced Gellhorn, who produced the draft altered as stated above. The cashier agreed to purchase the draft, and told Rivers to indorse it. The latter at first refused to indorse the draft, saying that he had not come to indorse for Gellhorn, but only to identify him, but finally did so, writing his name under and after that of Gellhorn. The latter then went to the paying teller, and received $2,000 less $1,...