Missouri-Lincoln Trust Co. v. Third Nat. Bank

• Decision Date: 30 December 1910
• Parties: MISSOURI-LINCOLN TRUST CO. v. THIRD NAT. BANK OF ST. LOUIS.
• Court: Missouri Court of Appeals

133 S.W. 357

154 Mo. A. 89

MISSOURI-LINCOLN TRUST CO. v. THIRD NAT. BANK OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

December 30, 1910.

Rehearing Denied January 11, 1911.

1. PLEADING (§ 214) — DEMURRER — ADMISSIONS.

A demurrer admits facts well pleaded, but not immaterial facts and legal conclusions.

2. BANKS AND BANKING (§ 148)—SIGNATURE OF DEPOSITOR—LIABILITY OF BANK.

A bank is conclusively presumed and bound to know the signature of a depositor to a check drawn on it.

3. BANKS AND BANKING (§ 148)—SIGNATURE OF DEPOSITOR—LIABILITY OF BANK.

A bank is not chargeable with knowledge of the genuineness of the signature of a depositor appearing as indorser on a paper drawn by a third person on another bank, and made payable to the depositor, and by paying the paper, it does not admit the genuineness of the indorsement.

4. EVIDENCE (§ 60)—PRESUMPTIONS.

The presumption of law is in favor of right action, and a wrongful act is a matter of proof, and will not be presumed.

5. BANKS AND BANKING (§ 190)—PAYMENT OF CHECKS—NEGLIGENCE.

A railroad company drew its check on a bank in favor of a depositor of defendant. On the same day, the check, purporting to be indorsed by the depositor, was presented to defendant by a third person, and it issued to the order of the depositor a draft on a Chicago bank for a part of the check, and delivered the draft to the third person who forged the name of the depositor and obtained the proceeds of the draft. There was nothing to show that the third person received the difference between the draft and the check, or that he was the one who forged the indorsement on the check. Held, that defendant was not guilty of actionable negligence in issuing and delivering the draft to the third person, rendering it liable to plaintiff, a subsequent indorsee of the draft, for though it knew that the third person had forged the indorsement on the check, it was not put on notice that the third person would commit a second forgery by indorsing the draft.

6. BANKS AND BANKING (§ 190)—ISSUANCE OF DRAFT—NEGLIGENCE.

Where plaintiff collected the draft from the Chicago bank, but, on discovery of the forgery, refunded the amount to defendant, the act of defendant in treating its draft as paid, and crediting the drawee bank with the amount thereof, did not establish its liability to plaintiff.

7. BANKS AND BANKING (§ 190)—PAYMENT OF CHECKS—NEGLIGENCE—ESTOPPEL.

A delay of four months between the cashing of the draft by plaintiff and the demand on it by defendant to refund the amount of the draft did not estop defendant from claiming restitution from plaintiff.

8. FRAUD (§ 18)—ACTIONABLE FRAUD.

Deceit to be actionable must be as to some material matter.

9. FRAUD (§ 18)—PAYMENT OF DRAFT CONTAINING FORGED INDORSEMENTS—DEMAND FOR REFUND—CONCEALMENT.

Defendant issued a draft in favor of a depositor on a Chicago bank, and delivered it to a third person, who forged the indorsement thereon and delivered it to individuals who indorsed the draft, and plaintiff cashed it, bearing such indorsements, and obtained the money from the Chicago bank. On defendant discovering the forgery after accepting the draft as paid, it requested plaintiff to refund the amount of the draft, and concealed from plaintiff the fact that it had already paid the draft and had it in its possession. Held, that the act of defendant did not amount to actionable deceit so that plaintiff, refunding the amount of the draft, could not sue defendant for fraud.

10. PAYMENT (§ 89)—RECOVERY—PLEADING— SUFFICIENCY.

A petition in an action for money paid in refunding the amount of a draft, received in due course of business, for value, which alleges the fact of the issuance of the draft, a forged indorsement and transfer to one who indorsed it and transferred it to plaintiff who received it in due course for value, and which avers that defendant, compelling the refund, was guilty of negligence in originally issuing and delivering the draft to the person forging the indorsement, and that defendant had and received to plaintiff's use the amount of the draft refunded, does not state a cause of action for money had and received.

11. PAYMENT (§ 87)—INVOLUNTARY PAYMENT.

An involuntary payment made under compulsion or legal process or duress of goods or of person, may be recovered back, but one seeking to recover back money paid must show not only that the demand was illegal, but he must show duress.

12. PAYMENT (§ 87)—INVOLUNTARY PAYMENT —PLEADINGS.

An allegation in a pleading that a bank, issuing a draft, compelled one who had received it in due course of business for value to refund the amount thereof because of a forged indorsement is not an allegation that the refund was an involuntary payment under duress, and the money could not be recovered back on that account.

13. PAYMENT (§ 84)—RECOVERY—MISTAKE OF LAW.

Where a bank, issuing a draft, compelled one who received it in due course of business for value to refund the amount thereof because of a forged indorsement, the latter, making the refund on the demand of the bank, concealing the fact that it had paid the draft and had it in its possession, could not recover the amount refunded on the ground of mistake, since the mistake, if any, was one of law.

Appeal from St. Louis Circuit Court; Virgil Rule, Judge.

Action by the Missouri-Lincoln Trust Company against the Third National Bank of St. Louis. From a judgment for defendant, plaintiff appeals. Affirmed.

Geo. B. Webster and Shepard R. Evans, for appellant. Fordyce, Holliday & White, for respondent.

REYNOLDS, P. J.

The amended petition in this case, as set out in the transcript before us, contains two counts or statements of the cause of action relied upon by plaintiff, both, however, relating to one and the same transaction, the grounds of recovery only differing. After averring the incorporation of the parties, for its first cause of action the plaintiff states that on and for a long time prior to September 8, 1906, one Parker was a depositor in and customer of the defendant; that on the 8th day of September, 1906, the St. Louis & San Francisco Railroad Company drew its check upon the State National Bank of St. Louis in favor of Parker, and that on the same day the check, purporting to be indorsed by Parker, was presented to the defendant, but that the indorsement thereon was in truth and in fact not the indorsement of Parker, nor any simulation of his signature, all of which the defendant then knew, or, by the exercise of ordinary care and prudence, might have known; that nevertheless the defendant accepted the check, and in lieu thereof issued to the order of Parker its sight draft upon the Continental National Bank of Chicago, Ill., dated September 8, 1906, whereby it ordered the Continental National Bank to pay to the order of Parker the sum of $6,000, and paid the balance of the check issued by the railroad company in cash or its equivalent; that thereupon the defendant delivered the draft for $6,000 to one Hand, and that afterwards, and upon the same day, Hand placed on the back of the draft an indorsement directing the payment thereof to one Hulbert, and signed the name of the payee, Parker, to this indorsement; that the signature of Parker so affixed was not his individual signature, nor any simulation or imitation thereof, nor so like the individual signature of Parker as to mislead any person of ordinary care and prudence; that thereafter, and upon the same day, Hand delivered the draft of $6,000, for value received, and in the ordinary course of business, to Hulbert, who in turn indorsed and transferred the same, for value received, and in the due course of business, to one Schuermann, who thereupon transferred and delivered the same, for value received, and in the due course of business, to the plaintiff; that thereafter, on or about the 12th day of September, 1906, the plaintiff transferred and delivered the same for collection to the National Bank of Commerce, which collected the amount of the draft from the Continental National Bank, which in turn presented the draft for payment to the defendant herein; that thereupon the defendant, notwithstanding the fact that it was bound to know the individual signature of Parker, and to inquire and examine as to the genuineness of the indorsement on the draft purporting to have been made by Parker as aforesaid, negligently and carelessly failed and omitted to make any inquiry or to notice the lack of similarity between the purported indorsement of Parker and his individual signature, but paid the draft, notwithstanding the fact that the purported indorsement of Parker was not so similar to his individual signature as to mislead any person of ordinary care and prudence; and that thereupon the liability of all the indorsers upon the draft to whom the plaintiff might otherwise have looked to compensate it for any loss which might be sustained by it through the false, fraudulent, and fictitious indorsement first appearing upon the draft as aforesaid was terminated; that thereafter, about the 30th of January, 1907, the defendant called upon and compelled the plaintiff to refund to it, through the Continental National Bank, the amount of the draft, without disclosing to the plaintiff the fact that it had theretofore paid the draft, and so terminated the liability thereon of itself and all of the indorsers; that at the time of the demand of the defendant, the draft was then in the possession of the defendant, but was not exhibited to the plaintiff, and the defendant gave out to and created upon the plaintiff, by its acts, statements, and representations, the impression that the draft was still outstanding in the hands of the Continental National Bank, and that the Continental National Bank was demanding from and pressing upon the defendant for payment thereof; that the plaintiff in ignorance of the actual facts and without knowledge or means of acquiring knowledge of such...