Massachusetts Bonding & Ins. Co. v. Pittsburg P. & S. Co.

• Decision Date: 07 December 1939
• Docket Number: No. 3883.,3883.
• Citation: 135 S.W.2d 818
• Parties: MASSACHUSETTS BONDING & INS. CO. v. PITTSBURG PIPE & SUPPLY CO. et al.
• Court: Texas Court of Appeals

135 S.W.2d 818

MASSACHUSETTS BONDING & INS. CO. v. PITTSBURG PIPE & SUPPLY CO. et al.

No. 3883.

Court of Civil Appeals of Texas. El Paso.

December 7, 1939.

Rehearing Denied January 11, 1940.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Gregg County; D. S. Meredith, Judge.

Action by the Massachusetts Bonding & Insurance Company, as assignee of the First National Bank of Longview, Tex., against Pittsburg Pipe & Supply Company and others, to recover amount paid by plaintiff's assignor on two forged checks. From the adverse part of a judgment, plaintiff appeals.

Judgment affirmed as to defendant Pittsburgh Pipe & Supply Company, and reversed as to defendant I. G. Futoransky.

Chrestman, Brundige, Fountain, Elliott & Bateman, of Dallas, for appellant.

H. P. Smead and Earl Roberts, both of Longview, for appellees.

PRICE, Chief Justice.

Massachusetts Bonding & Insurance Company, hereinafter referred to as plaintiff, instituted this action in the District Court of Gregg County, Texas, against Pittsburg Pipe & Supply Company, hereinafter called Supply Company, I. G. Futoransky, hereinafter called Futoransky, and Charles E. Wair. Plaintiff sued as the assignee of the First National Bank of Longview, Texas. It sought recovery of the sum of $2,020, alleging this amount was the amount paid by its assignor on two forged checks drawn against the account of Vivian Church and paid therefrom by its said assignor, and on ascertainment of the forgery credited back to the account of Miss Church. The forgery of the checks was alleged to have been committed by Wair; that in the case of the $2,000 check Wair forged the name of Vivian Church, leaving the name of the payee blank; that the defendant Supply Company, acting through its duly authorized agent, Futoransky, filled in the blank left for the payee with the word "cash," presented same to the assignor, and upon defendant Futoransky endorsing same, received cash therefor. It charged that Futoransky and the Supply Company owed a duty to the assignor bank before presenting such checks for payment of inquiring of the purported drawer thereof as to what authority had been given to fill in the name of the payee; that had such inquiry been pursued with reasonable diligence it would have been discovered that the checks were forged; that by reason of the negligence of said Futoransky and the Supply Company plaintiff's assignor suffered a loss of $2,020; that the said Futoransky and the Supply Company were guilty of negligence in not inquiring how Wair came into possession of the checks, or either of them, or as to what authority he might have to fill in the blanks therein or negotiate same. Relief was also sought on the grounds of mutual mistake and on doctrine of unjust enrichment.

Futoransky answered by general denial and plea of negligence on the part of the assignor bank in cashing the check, and that he was a bona fide purchaser of the checks in good faith.

Defendant Supply Company answered by general denial, set up negligence on the part of the assignor bank; further, if Futoransky accepted, signed or altered the checks he did so on his own responsibility and not as its agent; further, that it was a bona fide purchaser for value of the said checks.

Wair did not answer and judgment by default was rendered against him. This part of the judgment has not been appealed from.

The trial was before the court and resulted in a judgment against the plaintiff as to the two answering defendants. Plaintiff duly perfected appeal and the case is here for review.

It is here without findings of fact or conclusions of law by the trial court, as none were requested. Under the law it is implied that all essential facts were found by the court in such a manner as to support the judgment. In other words, we are not warranted in disturbing same if under any theory there is evidence in support thereof.

There is little dispute as to the facts. Prior to the cashing of the $2,000 check by the Bank, Wair had been negotiating with Futoransky, who was an agent and employee of the defendant Supply Company, for the purchase of machinery and supplies for drilling an oil well. It was finally agreed between Wair and Futoransky, acting on behalf of his principal in the scope of his authority, that upon Wair paying $1,500 in cash, the Supply Company would sell and furnish him at a price of $4,500 the material and machinery desired, the balance to be paid in the manner and to the extent in the contract agreed. There was a delay of several days, but thereafter Wair appeared at the office of Futoransky with the $2,000 check in question. This check purported to be drawn on plaintiff's assignor by Vivian Church. Wair delivered this check to Futoransky. After the contracts were drawn up and completed Futoransky, accompanied by Wair and another, went to the bank, endorsed the check, received therefor $500 in cash which he delivered to Wair. Fifteen hundred dollars he received in the form of a cashier's check payable to Supply Company. After receipt of the money and the check Futoransky delivered to Wair the contract in question and immediately thereafter the machinery and supplies mentioned in the contract were delivered by the Supply Company to Wair. Before paying the check the teller of the assignor Bank did not examine the signature card of Vivian Church to see how it compared with the signature on the check. The forgery of the signature was a rather skilful one.

The fact as to which there is a question as to its establishment is as to when and by whom the word "cash" was written in the $2,000 check. Plaintiff assumes that the evidence establishes to the extent that minds of reasonable men cannot differ as thereto that it was written by Futoransky after the check was delivered to him by Wair and before same was presented to the Bank. Defendants assert that it was an issuable fact as to when or by whom the blank was filled; that the evidence was sufficient to justify a finding by the court that the word had been written in before the check was delivered to Futoransky and without his knowledge. Further, that this Court should attribute such a finding to the trial court if it is necessary to support the judgment rendered.

The only solution of this controversy is to examine the evidence as shown by the record. Futoransky testified by deposition and in person at the trial. In substance he said he did not remember whether the space was blank at the time he received the check; he did not remember for sure whether he filled in the blank—he might have done so; he would not say under oath that he did not do it; that he did not know in whose handwriting the word "cash" was; he did not know whether it was his or not—it could be his handwriting —he would not say it was not. In regard to the $20 check he said he remembered writing in the word "cash." Witness examined the $20 and the $2,000 check and said the word "cash" as it appeared in each check looked, as to handwriting, a good deal alike.

Witness Robbins said he saw Wair deliver to Futoransky the $2,000 check in question on the same afternoon it was cashed; did not see the face of the check; did not see Futoransky do anything but endorse the check.

Witness Lawrence Skipper, an agent for the plaintiff, said Mr. Loftis, President of the Bank, called him up about the forgery when same was discovered, and that that same day an investigation was made about the forgery. In the course of the investigation he was present at a conversation with Mr. Futoransky, Mr. Loftis, Mr. Taylor and Mr. Davis; that Futoransky said the $2,000 check was blank as to the payee when delivered; he further said he (Futoransky) had written the word "cash" in the $2,000 check. Mr. Loftis, the President of the Bank, testified as to this conversation. He said according to his best recollection he called Futoransky's attention to a difference in the letter "C" as it appeared in the name Church signed to the $2,000 check and the letter "c" in the word "cash" therein; that as he remembered, Futoransky said he wrote the word "cash" in the $2,000 check. Witness Walter W. Davis, employed as an adjuster in this matter for plaintiff, said that he was present at the said conversation. Witness said Futoransky stated he wrote the word "cash" in the $2,000 check. Futoransky, called to the stand as a witness for defendant, did not deny the statement as to his declarations testified to by these three witnesses. He was not interrogated with reference thereto by his attorney. It was as to a matter in his knowledge unless, perchance, he again did not remember.

We believe that as to the defendant Futoransky, under the testimony as above narrated, the minds of reasonable men cannot differ as to the fact that he did write the word "cash" in the $2,000 check before the presentation thereof for payment. It is possible that shortly after the discovery of the forgery he might have said he did write the word in the check when he had not done so. This is possible, but hardly reasonably probable. It is likewise possible that the testimony of the three witnesses that he said he did so is incorrect. If it be incorrect, he did not challenge their statements that he did make this statement.

The $2,000 check is an ordinary bank check, dated December 7, 1937. To the left of the space for filling in the name of the payee are the words "Pay to the order of." In this space the check as introduced in evidence had the word "cash." The check was in the sum of $2,000, and purported to be signed by Vivian Church.

Plaintiff, in the very beginning of his argument, makes this statement: "To save time and avoid unnecessary argument, appellant admits that the general rule, under the decisions in this State, is that a bank is presumed to know the signatures of its depositors, and, if a forged check is accepted and paid, the bank, as a general rule, will not be heard to assert a mistake as to the signature. However, there...