Deland v. the Dixon Nat'l Bank.

• Decision Date: 17 November 1884
• Citation: 111 Ill. 323,1884 WL 9964
• Parties: GEORGE M. DELANDv.THE DIXON NATIONAL BANK.
• Court: Illinois Supreme Court

111 Ill. 323

1884 WL 9964 (Ill.)

GEORGE M. DELAND

v.THE DIXON NATIONAL BANK.

Supreme Court of Illinois.

Filed at Ottawa Nov. 17, 1884.

OPINION TEXT STARTS HERE

APPEAL from the Appellate Court for the Second District;--heard in that court on writ of error to the Circuit Court of Lee county; the Hon. JOHN V. EUSTACE, Judge, presiding.

Messrs. BARGE, RATHBUN & BARGE, for the appellant:

The defendant undertook to collect the Dart note for the plaintiff, and is responsible for the negligence or default of a notary, or correspondent, or its own servants and agents. Darcy v. Jones, 42 N. J. L. 28; Arnault v. Pacific Bank, 47 N. Y. 570; Walker v. Bank, 9 Id. 582; Ætna Ins. Co. v. Alton City Bank, 25 Ill. 243; Commercial Bank v. Union Bank, 1 Kern. 203.

A forged indorsement or check can not be ratified. Shisler v. Vandike, 92 Pa. St. 447; McHugh v. County of Schuyler, 69 Id. 391.

The burden of proof was on the bank to show it had paid out the deposit by authority. Watt v. Kirby, 15 Ill. 200.

Bankers are presumed to know the signatures of their customers, and they pay checks purporting to be drawn on them, at their peril. Weissen's Admr. v. Dennison, 10 N. Y. 68; Bank v. Ricker, 71 Ill. 439; Price v. Neal, 3 Burr, 1354; Wilson v. Alexander, 3 Scam. 392; Hoffman v. Bank of Milwaukee, 12 Wall. 181; United States Bank v. Bank of Georgia, 10 Wheat. 333; Marine Bank v. Chandler, 27 Ill. 525; Marine Bank v. Rushmore, 28 Id. 463; Linkham & Co. v. Heyworth, 31 Id. 519.

Mr. A. K. TRUSDELL, for the appellee:

That appellant's acquiescence amounts to a ratification of the cashier's act in signing his name to check, see 1 Livermore on Agency, 44; Paley on Agency, 171; Bank v. Warren, 15 N. Y. 577.

Where the court is satisfied, from the whole record, that substantial justice has been done, it will not reverse. Glickauf v. Hirschhorn, 73 Ill. 577; Railway Co. v. Ingraham, 77 Id. 309.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

George M. DeLand, appellant, was a depositor with the Dixon National Bank from 1873 until 1877. In the month of April, 1877, the bank made out and delivered to DeLand a pass book and forty-two vouchers, which contained a full statement of moneys received by the bank and moneys paid out, as shown by the forty-two vouchers. From 1873 to 1877 DeLand had no book showing his transactions with the bank, but the entire account was kept by the bank. The statement of account, as furnished by the bank in April, 1877, showed the account balanced, and nothing due DeLand. No steps were taken by him in regard to the transaction until October 17, 1879, when he brought this action, claiming a balance due from the bank. The declaration contained the common counts, under which the plaintiff claimed to recover for money deposited with the bank, and for money collected by the bank from other parties in his favor, and not paid over. The defendant pleaded non assumpsit, and also a plea of set-off. In the latter plea the defendant claimed to recover two promissory notes,--one dated May 8, 1878, amount $127, and one for $707.62, dated November 15, 1877, executed by DeLand and one Trueman, who was at the time cashier of the bank. On a trial of the cause before a jury, the bank recovered a judgment for $1093.93,--the amount of the two notes and interest set out in the plea of set-off. This judgment was affirmed in the Appellate Court, and DeLand, the plaintiff in the action, has appealed to this court.

It was claimed on the trial that certain checks which purported to have been signed by DeLand, and which were charged against him in the account rendered by the bank, were never executed by him or by his authority. One of the checks,-- and, indeed, the only one over which there seems to have been reasonable ground for controversy,--was dated February 3, 1876, payable to J. C. Wiswell, or bearer, for $600, signed “Geo. DeLand.” The plaintiff testified that he never signed this check or authorized it signed, while on the other hand, Trueman testified that he drew and signed the check for and at the request of DeLand,-- that the money was used to cover the loss in a wheat deal on the board of trade in Chicago, in which the two were engaged. Whether this check was drawn with or without the authority of DeLand, was a question purely for the determination of the jury, and the testimony bearing upon the point was in the main confined to the evidence of DeLand on behalf of himself, and of Trueman for the bank. It was therefore necessary, in order that the jury might arrive at a correct result, that the instructions should be accurate. Among others, the court, on behalf of the bank, gave the following instruction:

“The court further instructs you, that the burden of proof in this case is...