Connors v. Old Forge Discount & Deposit Bank

• Decision Date: 20 April 1914
• Docket Number: 384
• Citation: 91 A. 210,245 Pa. 97
• Parties: Connors, Appellant, v. Old Forge Discount and Deposit Bank
• Court: Pennsylvania Supreme Court

91 A. 210

245 Pa. 97

Connors, Appellant, v. Old Forge Discount and Deposit Bank

No. 384

Supreme Court of Pennsylvania

April 20, 1914

Argued February 24, 1914

Appeal, No. 384, Jan. T., 1913, by plaintiff, from order of C.P. Lackawanna Co., Jan. T., 1911, No. 712, refusing to take off nonsuit in case of Henry Connors v. Old Forge Discount and Deposit Bank. Affirmed.

Assumpsit to recover the amount of a check paid by defendant upon a forged endorsement. Before O'NEILL, J.

The opinion of the Supreme Court states the facts.

The trial judge entered a compulsory nonsuit which the court in banc subsequently refused to take off. Plaintiff appealed.

Error assigned was in refusing to take off the nonsuit.

Judgment affirmed.

W. L Houck, of Houck & Benjamin, with him Morgan Kaufman, for appellant. -- The plaintiff was not negligent in not notifying the bank more promptly of the forgery: McNeeley v. Bank of No. America, 221 Pa. 588; United Security Life Ins. & Trust Co. v. Bank, 185 Pa. 586; Welsh v. German American Bank, 73 N.Y. 424; Califf v. First National Bank, 37 Pa.Super. 412; Cunningham v. First National Bank, 219 Pa. 310; Murray v. Real Estate Title Ins. & Trust Co, 39 Pa.Super. 438; Dallas v. Chaloner, 3 Dall. 500; Christman v. Com., 17 S. & R. 381; Leather Mfg. National Bank v. Morgan, 117 U.S. 96; Robb v. Pennsylvania Co., 3 Pa. Superior 254; Robb v. Pennsylvania Co., 186 Pa. 456; Delaware, L. & W.R.R. Co. v. Jones, 128 Pa. 308.

R. L. Levy and C. H. Welles, for appellee. -- The evidence justified the trial judge in deciding as a matter of law that the plaintiff was guilty of negligence in failing to notify the bank prior to August 5th, that the endorsement was a forgery: McNeeley v. Bank, 221 Pa. 588; Murray v. Real Estate Title Ins. & Trust Co., 39 Pa.Super. 438; Hottenstein v. Lerch, 104 Pa. 454; Tabor St. (No. 1), 26 Pa.Super. 167; Land Title & Trust Co. v. Bank, 196 Pa. 230; Snyder v. Corn Exchange Bank, 221 Pa. 599; States v. First National Bank, 203 Pa. 69.

Before FELL, C.J., BROWN, MESTREZAT, ELKIN and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE BROWN:

Plaintiff's cause of action, as set forth in his statement of claim, is that, as one of the depositors of the defendant, a banking institution, he drew a check on it which it paid and charged to his account on the forged endorsement of the payee; and he seeks to recover on the averment that, when he discovered that the payee's endorsement was forged, he immediately notified the bank of the forgery. If the material averment, that notice had been given to the bank by the appellant promptly upon his discovery of the forgery, had been supported by proof, the case would have been for the jury. The nonsuit, which the court in banc refused to take off, was evidently directed by the trial judge because that averment was not so supported. While no reason was given for entering the nonsuit, and none for refusing to take it off, it ought, under the material facts in the case, as developed by the plaintiff himself, to have been entered for his delay in notifying the bank of the forgery; and it is to be assumed it was entered for that reason. The vindication of the judgment of the court below is to be found in a brief recital of those facts.

On January 24, 1910, M. Morris Moskovitz, a member of the bar of Lackawanna County, applied to the appellant for a mortgage loan to one of his clients, Alexander Szeghi. In company with Moskovitz the appellant viewed the property which the former told him belonged to Szeghi, and, having been assured by Moskovitz that the title was good he accepted and left for record a mortgage, apparently signed and acknowledged by Szeghi. The mortgage was delivered to the appellant by Moskovitz, who stated that Szeghi was not able to be present on account of business engagements. Upon receipt of the mortgage the appellant handed Moskovitz his check for $1,450, the amount of the loan, drawn on the appellee to the order of Szeghi. Moskovitz deposited this check, bearing the forged endorsement, "Alexander Szeghi," to his own credit in a bank, which forwarded it to the defendant bank, where it was paid and charged to the appellant's account. Early in May, 1910, he went to Europe, and returned to Scranton on the eighteenth of the following month, when he learned that Moskovitz was a defaulter and had absconded. He then went to look at the property described in the mortgage and learned that Szeghi was not the owner of it. Having learned...