Bank of Commerce of Kansas City v. Ginocchio

• Decision Date: 08 November 1887
• Parties: BANK OF COMMERCE OF KANSAS CITY, Appellant, v. DOMENICO GINOCCHIO ET AL., Respondents.
• Court: Missouri Court of Appeals

27 Mo.App. 661

BANK OF COMMERCE OF KANSAS CITY, Appellant, v. DOMENICO GINOCCHIO ET AL., Respondents.

Court of Appeals of Missouri, St. Louis.

November 8, 1887

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Affirmed.

PATTISON & CRANE, for the appellant: Where an act may be performed in two ways, one of which may result in injury to others who may be affected, and the other is free from such liability the person performing the act must take that course which will prevent the injury. International Bank v. German Bank, 71 Mo. 183, 197; Heaven v. Pender, 11 Q B. Div. 503; Cooley on Torts, 630; Brown v Railroad, 49 Mich. 153. It is no defence that the defendants were actually innocent in the matter. Bank of Kentucky v. Schuylkill Bank, 1 Pars. Eq. 241; Lickbarrow v. Mason, 2 T. R. 63. Nor is it necessary that there should be privity between the parties. Gas Co. v. Robinson, 99 Pa.St. 1; Binford v. Johnson, 82 Ind. 426. The principle applies to transactions connected with negotiable paper. International Bank v. German Bank, 71 Mo. 183; Byles on Bills, 80; Yates v. Nash, 39 L. J. C. P. 306; Young v. Grote, 4 Bing. 253; Brown v. Reed, 79 Pa.St. 370.

BROADHEAD & HAEUSSLER, for the respondents: The purchaser of a draft must look to and know the vendor. If he purchases from a thief or forger, he does so at his peril, and can not hold the true owner for negligently losing the draft. Mead v. Young, 4 Term. Rep. 11; also cited in Byles on Bills, 80.

OPINION

THOMPSON J.

This is an action for damages for negligence. The circuit court sustained a demurrer to the petition, and the plaintiff appeals. The petition is as follows: " The plaintiff states that it is, and was, at all the times hereinafter mentioned, a corporation, carrying on the business of banking in the City of Kansas, state of Missouri; that the defendants, Domenico Ginocchio, David Ginocchio, and Louis Boggianna, are now, and were, at the times hereinafter mentioned, partners, doing business in the city of St. Louis, in said state, under the style and firm name of Ginocchio Brothers & Company.

The plaintiff states that, on or about the fourth of October, 1886, the defendants obtained from the Fourth National Bank, of the city of St. Louis, aforesaid, a draft, or bill of exchange, drawn by said Fourth National Bank, in favor of the defendants, by their firm name aforesaid, on the Chatham National Bank, of the city of New York, for two thousand dollars; that said draft read as follows:

$2,000. The Fourth National Bank of St. La.

Duplicate unpaid. St. Louis, Mo., Oct. 4, 1886.

Pay to the order of Ginocchio Bros. & Co. Two Thousand 000/100 Dollars.

To Chatham National Bank, J. W. BIEBINGER,

No. 261026. New York City. Cashier."

" The plaintiff states that the defendants wrote on said draft or bill of exchange, the following endorsement: ‘ Pay to the order of Harry Jones. Ginocchio Bros. & Co.,’ and enclosed it in a letter addressed as follows: " " Harry Jones, Kansas City, Mo.', without any addition, indicating the occupation, profession, residence, or place of business of the Harry Jones for whom said draft was intended; that said letter, with said draft enclosed, was received by a person in Kansas City named Harry Jones, and said draft was endorsed in blank by the person so receiving it, and duly negotiated by him for value. And the plaintiff says that said draft, so endorsed by Harry Jones, was offered to the plaintiff for sale, by the holder thereof, in due course of business; that the plaintiff, knowing the signature of Harry Jones, and that the said draft was, in fact, endorsed by a person of that name, purchased the same, and paid therefor the full face value thereof; that it thereupon received said draft, and without delay forwarded it to its correspondent in the city of New York, to be by said correspondent collected from said Chatham National Bank.

The plaintiff states, however, that before said draft was received in New York, the said Fourth National Bank of St. Louis had issued to the defendants a duplicate thereof, upon the representation by the said defendants that the Harry Jones to whom they had endorsed and mailed the same had not received it; and said duplicate draft was paid by said Chatham National Bank before there had been time, in the due course of business, for the presentation for payment of the draft held by the plaintiff; and the said Chatham National Bank, therefore, refused to pay the draft held by the plaintiff, and by reason of the premises and the acts of the defendants, aforesaid, the same has never been paid.

The plaintiff further alleges that the defendants, prior to the endorsement by them of said draft and the mailing of the same to Kansas City, had had frequent business transactions and much correspondence with the Harry Jones to whom they intended to endorse said draft; that said business transactions and correspondence had extended over a long period of time, and they well knew the street and number in said Kansas City at which their correspondent, Harry Jones did business at said time, as well, also, as his residence and occupation, and they also well knew, or might, by reasonable diligence, have ascertained, at the time when they endorsed said draft to Harry Jones, that there were in Kansas City at that time more than one person by the name of Harry Jones; and, further, the defendants well knew that, in order to obtain the money on said draft, the same would be negotiated with some bank or banker in the said City of Kansas; yet, notwithstanding their knowledge of these facts, did nothing whatever to identify, point out, or make certain the particular Harry Jones to whom it was intended that the said draft should be endorsed and delivered; nor did they, in addressing the letter enclosing said draft, in any way whatever identify or point out, either by location, occupation, profession, or otherwise, the Harry Jones to whom it was intended that said letter and draft should be delivered. The plaintiff says that they thus negligently, carelessly, and wrongfully put it in the power of some person of that name, other than the one intended by them, to obtain possession of said letter and draft, well knowing that the plaintiff, or any other bank with whom said draft might be negotiated, had no means of determining the particular Harry Jones who was intended by the defendants, except by the mere fact of possession of the draft. The plaintiff states that it used all the means of identification in its power, and that the name of the person endorsing the draft was in truth and in fact Harry Jones; that it had no other means of knowing the person intended as endorsee by the defendants than the...