Sims v. American National Bank of fort Smith
| Decision Date | 20 February 1911 |
| Citation | 135 S.W. 356,98 Ark. 1 |
| Parties | SIMS v. AMERICAN NATIONAL BANK OF FORT SMITH |
| Court | Arkansas Supreme Court |
Appeal from Sebastian Circuit Court; J. S. Maples, Judge on exchange; reversed.
STATEMENT BY THE COURT.
Appellants brought this action against the American National Bank of Fort Smith, Ark., on a draft for $ 500, which Alice Sims had purchased from said appellee, said draft being drawn upon the Mechanics-American National Bank of St. Louis, and payable to the order of Jesse Sims.
The complaint alleged Prayer for judgment for the amount with interest.
The answer admitted the purchase of the draft and payment of the money as alleged; denied that Jesse Sims presented the draft for payment to the Mechanics-American National Bank, and that said bank refused to pay same; alleged that it sold the draft upon said drawee bank and at the time had funds in said bank upon which it had a right to draw to a larger amount than the draft, and immediately credited said drawee bank with the amount of said draft and paid the same to the said Mechanics-American National Bank of St. Louis, the drawee before said draft was delivered to the payee, Jesse Sims alleged upon information that Alice Sims sent the draft to some one at Nacona, Texas, by the name of Jesse Sims, and that the Farmers & Merchants National Bank at Nacona, Tex., purchased same from some one representing himself to be Jesse Sims, and cashed and paid full value therefor after said draft had been indorsed by said Jesse Sims or the party representing himself to be Jesse Sims; that thereafter said draft was paid by the drawee in the due course of business; that it discharged its full duty by delivery to Alice Sims of a good and valid draft upon the drawee bank, in which it had funds sufficient to meet the payment, "and which drawee did pay and cash said draft when the same was presented to it, purporting to have been indorsed by the payee Jesse Sims;" that plaintiff failed to notify defendant of the refusal of the drawee bank to pay said draft after its presentment.
The testimony tended to show that on the 14th day of September, 1909, Alice Sims purchased from the appellee a draft for $ 500 payable to the order of Jesse Sims and drawn on the Mechanics-American National Bank of St. Louis; that she, pursuant to an agreement had with her brother and co-plaintiff, Jesse Sims, sent said draft to Jesse Sims in a registered letter, addressed to Jesse Sims at Nacona, Texas, intended for her said brother and co-plaintiff; that the registered letter containing said draft was delivered by a rural route carrier at Nacona, Tex., to some person other than the plaintiff Jesse Sims, which person represented himself to such carrier to be Jesse Sims; that said person to whom said letter was delivered by said carrier, took the draft therefrom, wrote on the back thereof the words "Jesse Sims," and presented the same to the Farmers & Merchants National Bank of Nacona, Tex., which said bank took said draft, and gave to said person so presenting the same the sum of $ 50 and deposit certificate for $ 450; that the indorsement of the name "Jesse Sims" on the back of the draft was a forgery, and was unauthorized by Jesse Sims, the brother of Alice Sims. The said Farmers & Merchants National Bank indorsed said draft, and guarantied all prior indorsements, and deposited the same with the Merchants & Planters Bank of Sherman, Tex., which on September 20, 1909, indorsed it and guarantied all indorsements, and deposited it with the National Bank of Commerce of St. Louis, Mo. The said draft was presented on the 22d day of September, 1909, to the drawee, said Mechanics-American National Bank, and paid by it, and the amount, $ 500, charged up against the American National Bank of Fort Smith, Ark., the drawer, which had funds in the drawee bank more than sufficient to pay said draft. In the ordinary course of business the draft was returned to the appellee as a voucher. The appellee was notified by appellant, Alice Sims, that she had received a letter purporting to be from her brother, which she regarded as a forgery. The testimony was conflicting as to whether this occurred before or after the return of the draft to appellee. In the latter part of January, 1910, the appellee delivered to Alice Sims the said draft which had been returned to it as a voucher, and the same was indorsed by Jesse Sims, and it was presented for payment to the Mechanics-American National Bank of St. Louis, and payment was by said bank refused, because it had already paid said draft once. On February 14 appellants demanded the payment of $ 500, the sum for which the draft was issued, from the appellee, the American National Bank of Fort Smith, at the time advising of its presentment to the drawee and its refusal to pay, and payment of said sum was refused.
The draft reads:
Another indorsement is so dim it cannot be deciphered.
Alice Sims testified when she got the letter from Nacona, Texas, acknowledging receipt of the draft, she knew it was not from her brother, and went to the American National Bank, and told Mr. Ball, the cashier, that she had received such a letter, and was sure her brother did not get the money; that she gave him the letter later on, she thought, and he said it was their funeral if somebody cashed it without being identified. On September 25, three days after the draft was paid by the drawee on the 22d, she wrote the bank at Nacona, Texas, asking information about the person for whom it cashed the draft on the forged indorsement. On November 3, 1909, appellee notified the drawee bank at St. Louis that the indorsement on this draft was a forgery, and asked that the amount $ 500 be placed to appellee's credit, and that it proceed against the bank from whom it received the draft, advising of a letter it had received from the cashier of the bank at Nacona, Texas. On November 4, the drawee bank replied, asking that an affidavit from the payee, Jesse Sims, be furnished that the indorsement had been forged, upon receipt of which it said the matter would have attention. On November 8 appellee sent the old draft, with the requested affidavit from Jesse Sims, to the Mechanics-American National Bank of St. Louis with this request: "Kindly give us credit for this amount, as there is no question whatever but that the indorsement is a forgery." On the 11th follows another letter to the drawee by appellee, complaining of the delay in allowing the credit, and stating: "We are charging the amount to your account today, and will ask you to give us credit for the same." On the 17th of November the St. Louis bank returned the old paid draft to the Fort Smith bank, declining to give credit for it.
Appellee bank afterwards turned this draft over to appellant, expressing the hope that they would be able to get the Texas bank or the St. Louis bank to pay it. It was then indorsed by Jesse Sims, appellant, who demanded payment of the drawee bank, which was refused because it had already paid the draft.
The case was submitted to the court without a jury, and after making findings of fact the court made the following declarations of law, to which the appellants excepted:
And rendered judgment dismissing the complaint and for costs, against appellants, from which this appeal is brought.
Judgment reversed.
Youmans & Youmans, for appellants.
1. The action of the Mechanics-American National Bank in charging up the amount of the draft against the appellee did not constitute such an acceptance by that bank as would warrant a suit by appellants against it, but their suit must be to recover from appellee. 94 U.S. 343; 143 Ill.App. 625; 40 Vt 733; 107 Mass. 45; 13 Allen, 444; 23 La.Ann. 49; 46 N.Y. 82; 10 Wall. 152; 34 Md. 574; 5 Col. 189; 55 Mich. 203; 62 Mich. 348; 54 O. St. 68; 82 N.Y. 1; 75 A. 313; 79 Mo. 168; 79 Mo. 251; 83 Mo. 337; 71 Mo.App. 132; Zane on Banks and Banking...
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