Maurmair v. Nat'l Bank of Commerce of Tulsa
| Decision Date | 15 May 1917 |
| Docket Number | Case Number: 6700 |
| Citation | 1917 OK 226,63 Okla. 283,165 P. 413 |
| Parties | MAURMAIR v. NATIONAL BANK OF COMMERCE OF TULSA. |
| Court | Oklahoma Supreme Court |
¶0 1. Banks and Banking--Check--Knowledge of Depositor's Signature. A bank upon which a depositor therein draws a check is charged with knowledge of the depositor's signature.
2. Same--Forged Check--Right to Payment. Where a signature to a bank check is forged or made without authority of the person whose signature it purports to be, it is wholly inoperative, and no right to enforce payment thereof against any party thereto can be acquired through or under such signature, unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority.
3. Trial--Instructions--Irrelevant Issue. It is error for the trial court to instruct the jury upon an irrelevant issue, not raised by the pleadings or of which there is no evidence, when the instruction is calculated to mislead the jury.
Sherman, Veasey & O'Meara, for plaintiff in error.
Randolph, Haver & Shirk, for defendant in error. J. R. Cottingham and S.W. Hayes, amici curiae.
¶1 This action was brought by Louis Maurmair to recover $ 1,170.30 from the National Bank of Commerce of Tulsa, Okla.; it being alleged that plaintiff deposited such sum in the bank and the bank refused to pay the same upon demand. An answer was filed charging payment, except the sum of $ 130.30, which it was alleged was on deposit in defendant bank subject to plaintiff's check. Plaintiff replied by general denial. The question presented at the trial related to the payment of three checks of $ 90, $ 440, and $ 510, which were paid by the bank, and the signatures to which the plaintiff claimed were forgeries. The primary issue before the trial court was whether the signatures were genuine or forgeries. There was no claim either by plaintiff or defendant that the signatures were obtained by fraud or trick practiced upon the plaintiff, and no evidence to support such a claim. A witness for the plaintiff sought to show the signatures to have been made from a common signature by tracing over plaintiff's signature, using transfer or carbon paper, so as to obtain his apparent signatures on the checks alleged to be forgeries. By instruction No. 6, which the court gave to the jury over plaintiff's objection, the law was said to be that if the signatures to the checks for $ 400 and $ 510 were made by plaintiff, either by directly affixing his signature thereto, or by affixing his signature thereto without his knowledge or consent by means of a deception practiced upon him, by third parties placing carbon papers between the paper on which he knowingly affixed his original signature and the checks thereunder, thereby obtaining carbon copies of his original signature, such copies of his signature would be considered as his original signature, binding upon him; and, further, that if the bank paid such checks in good faith, believing the signatures thereto were genuine, the plaintiff would not be allowed to recover thereon. The instruction is outside of the issues framed by the pleadings and is not authorized by the evidence. Throughout the trial, plaintiff testified that the signatures were not his. Southwell, the handwriting expert, expressed the opinion that the signatures were not genuine, but had been made by the use of Maurmair's signature upon some piece of paper and the genuine signature, thus secured, used in imprinting his signature upon the checks by the use of carbon sheets. We find no testimony in the record that the signature to the checks was made by the plaintiff, either by the intentional or unintentional use of carbon sheets. On the other hand, the testimony was to the effect that plaintiff had never used carbon paper in his check book, or in any otherwise. In short, there was no evidence to support the contention that plaintiff's signatures to the checks were affixed thereto by means of imposition practiced upon him by a third party placing a carbon paper under some other paper "on which he knowingly affixed his original signature." The evidence on the part of the bank was that the signatures to the three controverted checks were the genuine signatures of the plaintiff. Obviously, therefore, there is no basis for the instruction complained of; it is wholly outside the issues and without evidence to authorize its...
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