First Federal Sav. and Loan Ass'n of Sioux Falls v. Union Bank & Trust, 12225

• Decision Date: 25 March 1980
• Docket Number: No. 12225,12225
• Parties: 29 UCC Rep.Serv. 928 FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF SIOUX FALLS, Plaintiff and Appellant, v. UNION BANK & TRUST, now United National Bank, Defendant and Appellee. . Reassigned
• Court: South Dakota Supreme Court

Page 282

291 N.W.2d 282

29 UCC Rep.Serv. 928

FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF SIOUX FALLS, Plaintiff and Appellant, v. UNION BANK & TRUST, now United National Bank, Defendant and Appellee.

No. 12225.

Supreme Court of South Dakota.

Reassigned March 25, 1980.

Decided April 16, 1980.

Rehearing Denied May 22, 1980.

Gale E. Fisher, Sioux Falls, for plaintiff and appellant.

F. M. Smith of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and appellee; Gene E. Pruitt of Willy, Pruitt, Matthews, Hurd, Farrell, Frankman & Johnson, Sioux Falls, on the brief.

WOLLMAN, Chief Justice (on reassignment).

Plaintiff appeals from the judgment entered denying its claim for recovery against defendant. We affirm.

The facts of the case are not in dispute on the salient issues. Briefly stated, one Mary Apland while in the employ of plaintiff as a teller had authority to make checks payable to customers and others in the ordinary course of her employer's business. She and the other tellers were authorized to use a check-imprinting machine for this purpose that bore the facsimile signature of one of plaintiff's vice-presidents, Frank Everett. The usual occasions for the issuance of plaintiff's checks by its tellers were upon withdrawal of funds by customers from their savings accounts and upon the making of share loans advanced against a customer's certificate of deposit or passbook. It was a practice of plaintiff to make such checks payable to third persons when requested by a customer to do so and then to entrust the check to the customer to dispose of the proceeds as he or she saw fit. Such third-party checks were frequently made payable to banks in connection with transfer of a customer's funds or payment of a customer's loan. Both plaintiff's vice-president and treasurer testified that this procedure was permitted by plaintiff to save their customers "the bother" of having to endorse the checks themselves. These checks bore no indication on their faces identifying the customer's account or the purpose of the check. Payee banks dispensed the proceeds per the request of the customer presenting them to accommodate plaintiff's practice. This procedure clearly had plaintiff's approval. Defendant relied on this practice in accepting the checks in question and paying them to Mrs. Apland either by cash or by deposit to her account.

The checks in question were part of a fraudulent scheme whereby Mrs. Apland would prepare fictitious share loan documents, forging the necessary customer's signature. She would then issue a check representing the proceeds of the fictitious loans payable to defendant bank. She imprinted the facsimile signature of Frank Everett on these checks so that they appeared to be authentic checks issued pursuant to a bona fide transaction. She drafted twenty-three such checks. No notation identifying either a customer's account or the purpose of the transaction appeared on these checks. Mrs. Apland was a depositor, customer, and debtor of defendant bank. Plaintiff did not have an account with defendant. The drawee-payor of these checks was the Northwestern National Bank of Sioux Falls.

Over the course of approximately two years, Mrs. Apland took twenty-three such checks to defendant. There, pursuant to her directions, defendant either credited her personal account or paid her cash or both for each check. Although one of defendant's tellers apparently knew that Mrs. Apland was employed by plaintiff, the tellers accepting these checks were not aware of what position she held. Defendant dealt with her as a mutual customer of itself and plaintiff. From time to time Mrs. Apland made payments on her and her husband's personal loans with defendant after depositing in her account the proceeds from some of these checks; however, there is no evidence in the record that any of these checks were applied in direct payment of any of her personal loans. Also, on occasion, Mrs. Apland would deposit proceeds from these checks to her account in response to a notice from defendant that her account was overdrawn.

After crediting the amount of one of these checks to Mrs. Apland's account or paying her cash or both, defendant would place its forwarding endorsement on it without any indication of the manner in which or to whom the funds had been disbursed.

The checks were then forwarded to the drawee-payor bank, Northwestern National Bank of Sioux Falls, which then paid its funds over to defendant bank and debited plaintiff's account for the amount of the check.

The twenty-three checks were written and cashed over the period from July 13, 1972, to August 20, 1974, before the defalcations were discovered by plaintiff on the last Friday in August 1974. This suit followed. Plaintiff seeks to recover the aggregate amount of these checks on the theory of money had and received.

I

Plaintiff argues that the trial court erred in granting a directed verdict to defendant and in refusing to grant plaintiff's motion for directed verdict.

A motion for directed verdict raises the question of legal sufficiency of the evidence, and the trial court must accept that evidence in the light most favorable to the non-moving party. Northwest Realty Co. v. Perez, 81 S.D. 500, 137 N.W.2d 345 (1965); Langdon v. Reuppel, 81 S.D. 289, 134 N.W.2d 293 (1965).

The evidence is undisputed that none of the proceeds of the checks in question were in fact received and retained by defendant. Instead, they were disbursed at Mrs. Apland's direction in accordance with commercial practices used, condoned and encouraged by plaintiff for the convenience of its customers; i. e., allowing third parties to be named as sole payees on checks issued by plaintiff without any identification on the check of the account owner or the underlying purpose of the transaction.

South Dakota's version of the Uniform Commercial Code establishes the basic rules for commercial transactions such as those in issue here. SDCL 57-1-1. SDCL 57-13-13 (UCC 3-406) provides:

Any person who by his negligence substantially contributes to . . . the making of an unauthorized signature is precluded from asserting the . . . lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee's or payor's business.

The official comment states that this section applies to negligence that contributes to a forgery or other unauthorized signature as defined by SDCL 57-1-2 (UCC 1-201). "The most obvious case is that of a drawer who makes use of a signature stamp or other automatic signing device and is negligent in looking after it." 2 Uniform Laws Annotated, U.C.C. (Master Ed.) § 3-406 at 349, note 7.

SDCL 57-1-2(39) (UCC 1-201(43)) defines an "unauthorized" signature as "one made without actual, implied or apparent authority and includes a forgery." An employee's conduct shows intent sufficient to constitute that required for the crime of forgery

where he voluntarily acts beyond his authority for the purpose of defrauding. Where, however, the agent is innocent of any conscious wrongdoing and in good faith believes that he has authority, the signature that he makes of his principal's name is not a forgery because of the fact that the agent lacks the requisite authority to act as he has.

1 Anderson, Uniform Commercial Code, § 1-201:58, at 102 (1970). Forgery of a signature occurs when "a person knows that he is not authorized as agent and signs the name of another with the criminal intent to defraud by so doing." 1 Anderson, supra, § 1-201:58, at 103.

As pointed out in Judge Parker's concurring opinion, since forgery is not defined by the UCC, local law controls. SDCL 57-1-25 (UCC 1-103). The record in this case supports the conclusion that Mrs. Apland's use of the mechanically reproduced signature of Frank Everett constituted forgery, for "to constitute forgery it is sufficient that the writing possess some apparent legal efficacy." State v. Greene, 86 S.D. 177, 186, 192 N.W.2d 712, 717 (1972). There being a forged, and hence unauthorized, signature, the question remains whether The trial court held that because plaintiff, as a matter of law, was negligent in permitting third parties to be named as sole payees on checks issued without identification of the account owner thereon and in conducting its internal control procedures, the provisions of SDCL 57-13-13 barred it from recovery. We agree.

plaintiff "substantially" contributed to the making of that signature by its negligence. If so, and if defendant paid "the instrument in good faith and in accordance with the reasonable commercial standards of the . . . payor's business," plaintiff is precluded from asserting the lack of authority of the signature against defendant's defense. SDCL 57-13-13.

The record indicates through the testimony of Frank Everett, plaintiff's executive vice-president and manager, that it was the practice of plaintiff to allow a customer to draw from his account and ask the teller to make the check out to some third party, another bank, for example, any time the customer requested it. The check would then be turned over to the customer without any further information being placed on the face of the check regarding name of customer, account holder, or purpose of the check.

Mary Vietor, plaintiff's treasurer, testified that under these practices, the customer's name or identification was not placed on the check itself, nor was the purpose for the check. Asked if these checks were inspected by plaintiff, Mrs. Vietor answered that the checks so issued, which totaled approximately fifty per day, were "gone through" two or three times "to get the totals" correct, and that for the inspector to check the payee on each check would have been no help because of the procedure put into practice by plaintiff. Other banks were cashing the checks so made out by plaintiff to "accommodate the...