Bank of Black Rock v. B. Johnson & Son Tie Company
| Decision Date | 14 March 1921 |
| Docket Number | 225 |
| Parties | BANK OF BLACK ROCK v. B. JOHNSON & SON TIE COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Lawrence Circuit Court, Western District; D. H. Coleman Judge; reversed.
STATEMENT OF FACTS.
Appellee sued appellant before a justice of the peace to recover $ 295, being the amount of a forged check purporting to have been drawn by appellee, which was cashed by appellant and charged to appellee. Judgment was there rendered in favor of appellant, and the case was carried to the circuit court by appellee, where there was a trial de novo.
The facts, briefly stated, are as follows:
The B Johnson & Son Tie Company is a foreign corporation doing business in the State of Arkansas, and W. M. Prater is its State manager. W. N. Pruett was one of appellee's agents who had authority to sign checks for appellee in payment of ties. Appellant is a bank doing business at Black Rock Arkansas. Appellee had furnished the bank with Pruett's signature on a card and the bank had been cashing his checks for two or three years. The check in question was for $ 295, dated May 22, 1919, and payable to J. Jones at the Bank of Black Rock. It was signed, "B. Johnson & Son Tie Company, per W. N. Pruett, Inspector." The check was cashed by the bank on May 26, 1919, and was sent by it to appellee and received by it on June 4, 1919. Appellee kept the check until June 11, 1919, when it took it up and the bank charged its account with it. Appellee closed out its account with appellant on June 11th, and placed it with another bank. At that time nothing was said about the check sued on being a forgery. Subsequently appellee found out that the check in question was a forgery. Appellee gained the information in this way. It received another check drawn on another bank purporting to have been signed by its agent, W. N. Pruett. It discovered that this check was a forgery and immediately sent to both the banks with which it did business for all checks purporting to have been issued by it and cashed by the banks. The checks were about 800 in number. Among them was the check sued on, and it was discovered to be a forgery. Appellee then notified appellant of the fact that the check was a forgery and demanded payment of appellant, which was refused. This was about thirty days after appellee had taken up the check after it had been cashed by appellant.
A verdict for appellee was returned, and to reverse the judgment rendered this appeal has been prosecuted.
Reversed and cause remanded.
R. C. Waldron, for appellant.
The court erred in directing a verdict for appellee. 115 Ark. 166. Appellees did not give notice of the forgery of the check in time. 4 N.H. 457; 49 Ark. 45. The testimony was conflicting and a jury should have passed on the case.
Cohn, Clayton & Cohn and L. B. Poindexter, for appellee.
The check was a forgery, and appellant was negligent. Appellant was not prejudiced by the failure to give notice earlier. Whenever a bank receives money on deposit, it agrees that it shall only be paid out on the order of the depositor, and it can not charge a depositor with money paid out on a forged check. 142 Ark. 414-18; 7 C. J. 683. See, also, Negotiable Inst. Act, §§ 23, 185; C. & M. Digest, §§ 7789, 7951; 205 S.W. 96-8-9.
Where a check forged has been paid through the negligence of the bank's employee the bank is liable, even if the depositor is neglectful in notifying the bank of the forgery. 76 Hun (N. Y.) 475; 27 N.Y.S. 1070; 10 Misc. 680; 171 N.Y. 219; 57 L. R. A. 529, 533-4; 20 L. R. A. (N. S.) 79-80; 16 Id. 593, 600; 141 Ark. 414-18; 73 Id. 561-7-8; 115 Id. 326.
Even if appellant had not been negligent, delay on the part of the depositor to notify the bank of the forgery is immaterial where the bank fails to allege or prove damage or prejudice growing out of such failure. 92 Cal. 4; 27 P. 1100; 14 L. R. A. 320; 5 Utah 504; 18 P. 43; 69 Tex. 38; 6 S.W. 171; 51 Md. 562; 39 Mo.App. 72; 191 Mass. 159; 77 N.E. 693; 76 Hun. 475; 27 N.Y.S. 1070; 10 Misc. 680; 31 N.Y.S. 790; 171 N.Y. 219; 57 L. R. A. 529-33-4; 20 L. R. A. (N. S.) 79, 80, and note; 141 Ark. 414, 418; 73 Ark. 561-7-8; 115 Id. 177.
OPINIONHART, J. (after stating the facts).
The undisputed evidence shows that the signature of appellee to the check in question was forged.
Section 7789 of Crawford & Moses' Digest relative to the effect of a forged signature is as follows:
"When a signature is forged or made without the authority of the person whose signature it purports to be, it is wholly inoperative, and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party, against whom it is sought to enforce such a right, is precluded from setting up the forgery or want of authority."
Under this section payment upon a forged check by a bank upon whom it is drawn is made at the bank's peril, and it is not justified in charging it against the depositor's account unless the latter is precluded from setting up the forgery or want of authority. This brings us to a consideration of what facts or circumstances will preclude the person, whose signature has been forged, from setting up the forgery.
In Leather Manufacturers' Bank v. Morgan, 117 U.S. 96, 29 L.Ed. 811, 6 S.Ct. 657, it was held that a depositor is bound personally or by his agent, and with due diligence, to examine the passbook and vouchers, and to report to the bank, without unreasonable delay, any errors which may be discovered in them; and if he fails to do so, and if the bank is thereby misled to its prejudice, he can not afterward dispute the correctness of the balance shown it in the passbook.
In Citizens Bank & Trust Co. v. Hinkle, 126 Ark. 266, 189 S.W. 679, the court held that it is the duty of a depositor to examine his returned checks and to make complaint to the bank if they furnish notice that improper charges have been made against his account.
In Weinstein v. National Bank of Jefferson, 69 Tex. 38, the court held that a bank is not liable to a depositor, when money has been paid out by it on forged checks, if the depositor, after receiving a statement of his account by which he is enabled to ascertain the forgery, neglects to inform the bank thereof in reasonable time, and thereby loses the opportunity of recovering the money, which it could have secured if promptly informed.
In Janin v. London & San Francisco Bank (Cal.), 14 L.R.A. 320, it was held that a depositor owes to the bank the duty of examining his checks within a reasonable time after they are returned to him in order to discover and give notice of any forgery. See, also, Dana & Dana v. National Bank of the Republic, 132 Mass. 156; Shipman v. Bank of the State of New York (N. Y.), 12 L.R.A. 791; Hardy v. Chesapeake Bank (Md.), 34 Am. Rep. 325; Morse on Banks and Banking (5 ed.) vol. 2, §§ 472-473; First National Bank of Birmingham v. Allen (Ala.), 27 L.R.A. 426, and Robinson v. Security Bank & Trust Co., 141 Ark. 414, 216 S.W. 717. These authorities hold that the depositor must not only use due diligence in giving the bank notice or knowledge of the forgery, but must also exercise due diligence in discovering it. The depositor can not require the bank to correct a...
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