Equipment Distributors, Inc. v. Charter Oak Bank & Trust Co., 332

Decision Date11 February 1977
Docket NumberNo. 332,332
Citation379 A.2d 682,34 Conn.Supp. 606
CourtConnecticut Superior Court
Parties, 20 UCC Rep.Serv. 1231, 22 UCC Rep.Serv. 1192 EQUIPMENT DISTRIBUTORS, INC. v. CHARTER OAK BANK AND TRUST COMPANY et al.

Robert U. Sattin, Hartford, for appellant (plaintiff).

Arnold E. Buchman, Hartford, for appellee (named defendant).

PARSKEY, Judge.

This action for conversion of a check was brought against the Charter Oak Bank and Trust Company, hereinafter Charter Oak, the depositary bank, and New Britain Bank and Trust Company, hereinafter New Britain, the drawee bank. The plaintiff claims to be a joint payee of the check and asserts that Charter Oak collected the proceeds of the check and New Britain paid the check on a forged endorsement. The trial court, upon motion by the defendants, rendered a judgment of nonsuit for failure of the plaintiff to prove a prima facie case.

We first consider Charter Oak's claim that, in the absence of a finding, there is no basis upon which this court can review the action of the trial court. Under the rules for the appellate session a finding is necessary only when the appellant desires to have reviewed the court's conclusions on the facts of the case. Practice Book § 567A. A nonsuit for failure to prove a prima facie case is tested by the evidence. The court finds no facts. An evidentiary nonsuit may enter only "when the evidence produced by the plaintiff, if fully believed, would not permit the trier in reason to find the essential issues on the complaint in favor of the plaintiff." Minicozzi v. Atlantic Refining Co., 143 Conn. 226, 230, 120 A.2d 924, 926; Fritz v. Gaudet, 101 Conn. 52, 53, 124 A. 841; Girard v. Grosvenordale Co., 83 Conn. 20, 25, 74 A. 1126. Had the statute not provided for a motion to set aside such a nonsuit, the granting of a nonsuit for insufficient evidence would have been appealable as a final judgment. Chichester v. New Hampshire Fire Ins. Co., 72 Conn. 707, 708, 46 A. 151. That the legislature, at an earlier time and continuing to this date, has provided an alternative procedure designed to give the trial court an opportunity to review its previous ruling; ibid.; has no bearing on the procedural rules applicable to an appeal from a judgment of nonsuit. General Statutes § 52-211(b). 1

The material allegations of both counts of the complaint are these: On or about December 17, 1971, Newington Associates, hereinafter Newington, issued a check in the face amount of $8000 drawn on New Britain and payable to both Air Conditioning Associates, hereinafter ACA, and the plaintiff. ACA endorsed the check in both names and deposited it in Charter Oak. At no time did the plaintiff authorize ACA or any of its agents to endorse the plaintiff's name on the check. The endorsement of the plaintiff's name on the check was a forgery. The plaintiff, as a joint payee, was entitled to its share of the proceeds of the check. Charter Oak converted the check by collecting the proceeds on a forged endorsement and by wrongfully paying those proceeds to ACA. New Britain converted the check by wrongfully paying it on a forged endorsement.

Upon the evidence taken in the light most favorable to the plaintiff the trier might reasonably have found the following facts: In December, 1971, Newington was the owner and developer of a construction project known as Richard Arms Apartments. ACA was the heating and air-conditioning subcontractor for the project. The plaintiff supplied materials to ACA for this project and others under an open running account. Before the present transaction, Newington had done business with both ACA and the plaintiff and had bought equipment from the plaintiff. Newington did not know of the existence of an entity called "Air Conditioning Associates Equipment Distributors." Newington drew a check on New Britain bank for $8000. 2 On the face of the check was the notation "Re: Richard Arms Apartments, Newington, Conn." The check was delivered into the possession of ACA which caused the check to be endorsed. 3 Neither ACA nor its agents was authorized by the plaintiff to endorse its signature on the check. Charter Oak accepted the check for deposit as it was endorsed and forwarded it to New Britain for collection. New Britain paid the check and transmitted the proceeds to Charter Oak, which credited ACA's account for the full amount of the check.

From those facts the trier might reasonably have concluded that the plaintiff was a joint payee on the subject check. The absence of the word "and" would not have been controlling. Feldman Construction Co. v. Union Bank, 28 Cal.App.3d 731, 104 Cal.Rptr. 912. Since the check was made payable to two persons and was not payable in the alternative, it could be negotiated only by both of them. General Statutes § 42a-3-116(b). ACA's unauthorized endorsement of the plaintiff's signature was inoperative as the plaintiff's signature. General Statutes § 42a-3-404. Charter Oak's collection of the proceeds of the check based on an unauthorized endorsement constituted a conversion; Coleman v. Francis, 102 Conn. 612, 615, 129 A. 718; and subjected it to liability to the plaintiff as payee. Gresham State Bank v. O and K Construction Co., 231 Or. 106, 370 P.2d 726, 372 P.2d 187; see Hartford Accident & Indemnity Co. v. South Windsor Bank & Trust Co., 171 Conn. 63, 368 A.2d 76; annot., 100 A.L.R.2d 670, 677-80. Charter Oak's reliance on Healey v. Flammia, 96 Conn. 233, 113 A. 449, is inapposite. In Healey, there was no allegation of facts from which one could draw an inference of the plaintiff's right to immediate possession. In this case, however, Newington's knowledge of ACA as a heating and air-conditioning subcontractor and of the plaintiff as a supplier of materials to ACA, its knowledge of the relationship of ACA and the plaintiff to the Richard Arms...

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15 cases
  • Aetna Cas. and Sur. Co. v. Hepler State Bank
    • United States
    • Kansas Court of Appeals
    • 2 Julio 1981
    ...on a forged indorsement. " (Emphasis added.) Courts which have faced this argument have rejected it. Equipment Distrib. v. Charter Oak Bank, Etc., 34 Conn.Supp. 606, 379 A.2d 682 (1977), citing Hartford Accident & Indemnity Co. v. S. Windsor Bank & Trust Co., 171 Conn. 63, 368 A.2d 76 (1976......
  • Delta Chemical and Petroleum, Inc. v. Citizens Bank of Byhalia
    • United States
    • Mississippi Court of Appeals
    • 27 Marzo 2001
    ...of conversion where an unauthorized signature does not constitute forgery in strict sense); Equipment Distributors, Inc. v. Charter Oak Bank & Trust Co., 34 Conn.Supp. 606, 379 A.2d 682, 684 (1977) (holding that both an unauthorized and a forged endorsement of an instrument are one and the ......
  • Knesz v. Central Jersey Bank and Trust Co. of Freehold
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    • 24 Noviembre 1982
    ...Peoples Nat'l Bank v. American Fidelity Fire Ins., 39 Md.App. 614, 386 A.2d 1254 (Ct.App.1978); Equipment Distrib. v. Charter Oak Bank, etc., 34 Conn.Supp. 606, 379 A.2d 682 (Super.Ct.1977); New Jersey courts have not yet had to face this problem. The question of general applicability of § ......
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    ...Crop Seed & Supply Co., Inc. v. Bank of Southwest Louisiana, 392 So.2d 738 (La.App.1980); Equipment Distributors, Inc. v. Charter Oak Bank & Trust Company, 34 Conn.Supp. 606, 379 A.2d 682 (1977); Hartford Accident & Indemnity Co. v. South Windsor Bank and Trust Co., 171 Conn. 63, 368 A.2d 7......
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