Moore v. Bank of Dahlonega

• Decision Date: 07 July 1950
• Docket Number: No. 1,No. 33114,33114,1
• Citation: 82 Ga.App. 142,60 S.E.2d 507
• Parties: MOORE v. BANK OF DAHLONEGA
• Court: Georgia Court of Appeals

Page 507

60 S.E.2d 507

82 Ga.App. 142

MOORE v. BANK OF DAHLONEGA.

No. 33114.

Court of Appeals of Georgia, Division No. 1.

July 7, 1950.

Rehearing Denied July 20, 1950.

Syllabus by the Court.

Under the facts of this case the evidence failed to show that the North Carolina bank cashed the check on a forged indorsement, as the evidence shows without dispute that there was no deception or misrepresentation as to the identity of the person who indorsed the check. It follows that the drawee bank, which paid the check and charged it to the drawer's account, was not liable to the depositor for paying the check on a forged indorsement.

Henry W. Moore sued the Bank of Dahlonega to recover the amount of a check drawn by plaintiff on the bank and allegedly paid by the bank on a forged endorsement. The case was tried by the judge on an agreed statement of facts. The judge found for the defendant and plaintiff excepted. The substance of the petition can be seen from the agreed facts, which are substantially as follows: Henry W. Moore resides in and operates a store in Dahlonega, Georgia, selling hardware and other items and he is and was on April 15, 1947 a regular customer and depositor in the Bank of Dahlonega. The Bank of Dahlonega is a banking corporation, organized under the laws of the State of Georgia, with its principal office and place of business in Dahlonega, Lumpkin County, Georgia, and doing a general Banking business, including the receipt of demand deposits and maintenance of checking accounts for its customers and members of the general public, and was so engaged on April 15, 1947. On or about April 15, 1947, Henry W. Moore received in the United States Mail a price list of merchandise, same being headed, in pertinent part, as follows: 'Announcing the opening of our Asheville, North Carolina warehouse. Mail order to Gilbert Wholesale Hardware Co., P.O. Box 341, Asheville, North Carolina, Ship to _____, Address _____, Town _____, State _____. Guarantee: We guarantee the quality of every article we sell to be the best your money can buy. If for any reason you are not completely satisfied with anything you buy from us, you may return same to us any time within 10 days, for exchange, for replacement, or for refund of your money in full. Satisfaction Guaranteed. All prices are F.O.B. Ashville, North Carolina. Delivery charges must be paid by customer upon receipt of merchandise. Terms: 1/3 deposit with order, balance C.O.D. F.O.B. Asheville, North Carolina. Note: Special 10% discount this week on opening orders and we ship prepaid Railway Express to you when you send your check in full. We can ship on open account to rated concerns soon--all first orders C.O.D. We ship within 3 days. No back orders. Satisfaction guaranteed. We ship any quantity--from 1 to 1,000.' The above mentioned price list was addressed to 'Hardware Store, Dahlonega, Georgia. Upon receiving the price list, Henry W. Moore prepared an order for merchandise and prepared and signed a check on his printed check form, drawn on the Bank of Dahlonega, dated April 15, 1947, and being as follows: Henry W. Moore, Hardware and Electrical Equipment, Dahlonega, Ga., April 15, 1947, No. 665, Pay To The Order of Gilbert Wholesale Hardware Co., $465.01, The sum of $465 and 01 cts Dollars, To Bank of Dahlonega, Dahlonega, Ga., 64-581, Henry W. Moore (Printed) Henry W. Moore (Signed). The following appears on the back or reverse side of the check: 'Gilbert Wholesale Hardware Co. by Joe W. Gilbert' and 'Pay any Bank or Trust Co. or order, All prior endorsements guaranteed. April 16 47 1008, April 16 47 2008, Wachovia Bank and Trust Company' (Perforation through check Paid). 4-21-47, 64-581. The above check and order blank were placed in an envelope addressed to 'Gilbert Wholesale Hardware Co., P.O. Box 341, Asheville, North Carolina', the entries were placed on the back of the check after being mailed by Henry W. Moore. The check was paid by Wachovia Bank and Trust Company on April 16, 1947, and, with the endorsement appearing above, transmitted to the Bank of Dahlonega and paid by it on April 21, 1947. On or about April 15, 1947, a man introduced himself to Frank H. Keener, the Cashier of the Wachovia Bank and Trust Company and gave his name as Joe W. Gilbert. He made a deposit at that time of a number of checks drawn on banks in various towns and cities in the Southern states and some money orders. The account was opened in the name 'Gilbert Wholesale Hardware Company, P.O. Box 341, Asheville, North Carolina', and the man who made the deposits of the checks and money orders completed and left a signature comparison card, with the name 'Joe W. Gilbert' appearing thereon. At various times between April 15, 1947 and April 17, 1947, the same person made deposits of checks and money orders. Five withdrawal checks were charged against this account totaling $929.50 and two of these were cashed over the counter for and paid to the person represented to be Joe W. Gilbert, the identical person who opened the account. These two checks were cashed for him April 16, and April 17 for $100 and $200 respectively. These five checks did not exceed money orders already paid by the Post Office and checks which had been paid by drawee banks and remitted to Wachovia Bank and Trust Company. The check of Henry W. Moore, dated April 15, 1947, and described above was deposited in the Wachovia Bank and Trust Company by the identical person who opened the account in the name of Gilbert Wholesale Hardware Company and who had given his name as Joe W. Gilbert, on April 16, 1947, and the endorsement appearing on the back of the check, as shown above, was placed thereon on that date and was the same handwriting that appeared on the comparison signature card left with the bank when the account was opened. On April 18, 1947, the check was handled in regular and due course of business by mailing direct to the Bank of Dahlonega, Dahlonega, Georgia. It was paid by the Bank of Dahlonega on April 21, 1947 and remittance mailed by them on that date to the Wachovia Bank and Trust Company. No person or firm having a name similar to Gilbert Wholesale Hardware Company or Joe W. Gilbert had an account with the Wachovia Bank & Trust Company. No person or firm having a name similar to Gilbert Wholesale Hardware Company or Joe W. Gilbert had an account with the Wachovia Bank & Trust Company. The above check was returned to Henry W. Moore with his monthly bank statements on May 1, 1947. No claim was made that the bank erroneously paid the check until July 9, 1947. On May 6, 1947 he having not received the goods he had ordered, Henry W. Moore dispatched a telegram addressed to Gilbert Wholesale Hardware Company, Box 341, Asheville, North Carolina, inquiring when he might receive his order. On the same day, he wrote a letter addressed the same, referring to the telegram and stating: 'As your circular stated that shipment would be made within three days, we have been wondering when we would be able to receive same, or when shipment would be made, as we are badly in need of the articles ordered. Please advise just when shipment will be made or if already shipped, please trace of final delivery.' On May 9, 1947, and again on June 6, 1947, Henry W. Moore sent telegrams addressed to Gilbert Wholesale Hardware Company inquiring about the order but received no reply. On July 8, 1947, he was notified by the Western Union Telegraph Company that his telegram was undelivered because it was...