Goodfellow v. First Nat. Bank

• Decision Date: 18 January 1913
• Citation: 71 Wash. 554,129 P. 90
• Court: Washington Supreme Court
• Parties: GOODFELLOW v. FIRST NAT. BANK.

129 P. 90

71 Wash. 554

GOODFELLOW v. FIRST NAT. BANK.

Supreme Court of Washington

January 18, 1913

Department 2. Appeal from Superior Court, King County; John B. Yakey Judge.

Action by John Goodfellow against the First National Bank. Judgment for plaintiff, and defendant appeals. Affirmed.

Vince H. Faben, of Seattle, for appellant.

Peters & Powell, of Seattle, for respondent.

MAIN, J.

This is an action brought by the respondent to recover from the appellant funds which he claims to have had on deposit in appellant's bank, and which were paid out upon a forged indorsement. During the months of August and September, 1910 and for a considerable time prior thereto, the respondent was engaged in real estate and loan brokerage business at Seattle, Wash. With him was associated his son, H. A Goodfellow. An account was kept in the appellant's bank under the name of John Goodfellow, agent. Upon this account H. A. Goodfellow, the son, had authority to draw checks. Some time during the month of August, 1910, one D. M. Peeples sought from H. A. Goodfellow a loan in the sum of $5,000 for one Martha B. Barnes and her husband, whom he stated were clients of his, and desired the money principally for the purpose of paying local assessments and taxes upon the real estate offered as security. One Sieburn was a client of respondent's office at the time, and had money to loan. Upon making an examination of the land offered as security Sieburn indicated his willingness to make the loan. An abstract of title was thereupon delivered to H. A. Goodfellow by Peeples. Goodfellow, upon a casual examination of the abstract, noticed that the property stood in the name of Martha B. Barnes and her husband, W. H. T. Barnes, and thereupon asked Peeples the residence of the parties owning the land. Peeples stated that the Barneses formerly lived at Blaine, Wash., but had recently moved to Portland, Or. The Goodfellows, both father and son, had known the Barneses, who formerly lived at Fremont in Seattle, for something over 20 years, but had had no communication with them for 10 years prior to this time. H. A. Goodfellow thereupon addressed a letter to W. H. T. Barnes at Blaine, Wash., inquiring if he desired a loan of $5,000 upon the land covered by the abstract. This letter was received by Barnes, but he made no reply thereto. Immediately after the delivery of the abstract by Peeples to Goodfellow, it was turned over to the attorney for Sieburn for examination. The title being approved, a note and mortgage for the sum of $5,000, made out ready for signature, were delivered to Peeples by H. A. Goodfellow, in order that he might have his clients, the Barneses, execute the same. In the course of a few days Peeples returned to Goodfellow, in his office, the note and mortgage, which purported to have been executed by the Barneses at Portland, Or. Thereupon Sieburn was communicated with, and the following day Sieburn, Peeples, and Goodfellow met at the latter's office for the purpose of closing the transaction. Sieburn took the abstract and, with Peeples, went to the city hall, where, with his own check, Sieburn paid assessments against the property in the sum of approximately $3,400. Sieburn and Peeples then returned to the office of Goodfellow. Sieburn caused the portion of the $5,000 loan not consumed in the payment of assessments to be placed to the credit of John Goodfellow, agent, in the appellant's bank, and H. A. Goodfellow thereupon drew a check, payable to the order of Martha B. Barnes, for the sum of $926.13, which check was signed 'J. Goodfellow, Agent, by H. A. Goodfellow.' This check was delivered to Peeples, and in the course of three or four days thereafter Peeples caused himself to be introduced at the Mercantile Bank in the city of Seattle, and thereupon presented the check, which at that time bore the following indorsement: 'Martha B. Barnes, Dave Arlington, D. M. Peeples.' The check was cashed by the bank, Peeples thereupon opening an account, and the sum of $200 was deposited to his credit. The check passed through the clearing house, and was paid by the bank of the appellant; this bank relying upon the indorsement of the Mercantile Bank. A few days later, and on September 7th, a second check, for the sum of $42.01, was made out, payable to the order of Martha B. Barnes, and delivered to Peeples. This check took substantially the same course as the preceding one, and was ultimately paid by the bank of the appellant. Some two weeks after these checks had been paid, it was discovered that the name of Martha B. Barnes on the back thereof was a forgery. It further appears from the evidence in this case that Martha B. Barnes and her husband, W. H. T. Barnes, had not been in the city of Portland at the time the note and mortgage purported to be executed there; neither had they executed the note or mortgage at any other time or place. Peeples was in fact not their agent. They had not authorized him, or any other person, to procure a loan for them. Subsequently the respondent drew his check for a sum sufficient to cover the amounts covered by the two checks on which the name of Martha B. Barnes was gorged, and presented the same to the appellant's bank, where payment was refused. Thereupon this action was brought. The cause was tried to the court without a jury, and judgment rendered in favor of the respondent for the amount of the two checks in question, from which judgment the cause was brought here on appeal.

The first contention of the appellant is that the plaintiff has no legal capacity to sue, for the reason that the suit was not brought in the name of the real party in interest. In support of this contention the appellant cites 1 Rem. & Bal. Code, § 179, which provides: 'Every action shall be prosecuted in the name of the real party in interest, except as otherwise provided by law.' But the succeeding section 180 provides, among other things, that a 'trustee of an express trust may sue without joining the person for whose benefit the suit it prosecuted,' and then defines what a trustee of an express trust is, within the meaning of this section. Such definition is as follows: 'A trustee of an...