"It
is agreed by and between the parties hereto: That on and
previous to the 23d day of October, 1909, the plaintiff, who
is a white man and a citizen of said Harrison county, and
whose business was that of riding about buying cattle, had on
deposit in the First National Bank of De Funiak Springs
Fla., a balance of account of two hundred and eleven dollars
and that the plaintiff (who was then, and for some time had
been, living, and is now living, at a point between Gulfport
and Lyman, in said Harrison county, but nearest to Lyman, the
two points Gulfport and Lyman being eight miles apart) wrote
a letter to the said bank at De Funiak Springs, requesting
said bank to send said sum of two hundred and eleven dollars
to him at Gulfport, by letter, care general delivery
Gulfport, Miss., and in accordance with said instructions of
plaintiff, said bank at De Funiak Springs made out its draft
No. 12699 for said sum of two hundred and eleven dollars on
the National City Bank of New York, payable to the order of
J. S. Thomas, intending the plaintiff, and immediately mailed
same in the United States post-office at De Funiak Springs,
Fla., addressed as follows: 'J. S. Thomas, Gulfport,
Miss.' The plaintiff had theretofore been writing some of
his letters from Lyman, Miss., and some from Gulfport, and
had been getting his mail, some at Lyman and some at
Gulfport. However, the letter written by plaintiff to the
said bank at De Funiak Springs was written by plaintiff from
said Gulfport. There lived, and had for some years lived, in
Gulfport a certain negro named J. S. Thomas, who can and
could read and write, and who had a bank account at the First
National Bank of Gulfport, the defendant herein (an itemized
statement of whose entire deposits in defendant's bank to
the date hereof is attached hereto as 'Exhibit C'),
and who received his mail at said Gulfport. The authorized
signature of said negro was filed by him with the defendant
bank on February 4, 1907, where it still remains. When, by
due course of mail, the letter from said Florida bank,
containing said draft, reached the United States post-office
at Gulfport, about October 25, 1909, the said negro, J. S.
Thomas, was the first of said two persons of said name to
call at the general delivery for the mail of J. S. Thomas,
and the postal authorities in charge delivered the said
letter to him. The said negro opened said letter, and coming
into possession of said draft, took it on, to wit, October
26, 1909, during regular banking hours, to defendant's
bank, indorsed same, "J. S. Thomas," in his own
proper signature and handwriting, falsely representing it to
be his own, and that he was the true J. S. Thomas mentioned
as payee therein, by so indorsing and presenting said draft,
and requested defendant bank to cash the same. The said negro
was known to the officer of said defendant bank who was
acting as paying teller at the time, but was not the regular
teller, as J. S. Thomas, a depositor thereof, and the said
officer of said defendant bank having compared the
indorsement "J. S. Thomas" on the back of said
draft with the signature of said negro, J. S. Thomas, on
file, as aforesaid, and finding them to correspond, but
without further inquiry, thereupon paid the amount called for
by said draft, to wit, two hundred and eleven dollars in
cash, to said negro, J. S. Thomas, but said paying officer of
defendant took no other means to ascertain the identity of
said payee, J. S. Thomas, in the draft, merely paying said
money upon its presentation and comparison of signature, as
aforesaid. The original of said draft is herewith annexed,
marked 'Exhibit A,' and made a part of this agreed
statement of facts.
"The
said defendant bank, at the close of its business on said
October 26, 1909, in making up its items of paper to be
forwarded to New York for payment, discovered that the said
draft, Exhibit A, was erroneously safeguarded, as now appears
on its face, in this, to wit, that, while said draft was
intended to be for the sum of two hundred and eleven dollars,
it was stamped with a machine called a protectograph, which
had been caused by said De Funiak Springs bank to be
erroneously stamped thereon, 'Not over five dollars, $
5.00,' and thereupon, on said date, said defendant bank
sent the said draft by mail to said De Funiak Springs bank,
calling its attention to said error, and requesting said
Florida bank to send another draft in its place and stead
properly safeguarded, which letter reached said Florida bank
on the next day, October 27, 1909, and said Florida bank on
the same day took up and retained the said first draft,
Exhibit A, and on the same day, in its place and stead and in
lieu thereof, mailed to defendant bank a new draft, No.
12716, for two hundred and eleven dollars payable to said
defendant bank, which is herewith annexed as 'Exhibit
B,' and made a part of this agreed statement of facts,
which said last draft was duly received by said defendant
bank and by it at once forwarded to New York, where it was
paid in full to defendant bank out of the funds of the said
First National Bank of De Funiak Springs, Fla., by and in the
said National City Bank of New York, as is the banking custom
in such cases. The amount was charged by the said Florida
bank against the account of plaintiff and balanced same. That
the receipt and opening said letter containing said draft,
and cashing of the same at the defendant bank, and the
indorsement and presentation of the same by said negro, J. S.
Thomas, were all and singular without the information,
knowledge, or consent of the plaintiff, J. S. Thomas, and
that upon learning from said Florida bank, upon inquiry, that
the said sum of money, to wit, two hundred and eleven
dollars, the proceeds of said draft, had been paid to the
defendant bank, he went on, to wit, November 5, 1909, to said
defendant bank and claimed said draft and proceeds thereof,
and demanded payment of the same by the defendant to the
plaintiff, as the true owner of said draft, and then and
there notified said defendant bank that said indorsement was
a forgery, and that he had not indorsed the same. The
defendant bank refused to pay said sum of two hundred and
eleven dollars, or any part thereof, to the plaintiff, and
still refuses, though often requested. Upon said demands
being made, said defendant bank notified the United States
postal authorities and the police authorities of the said
city and endeavored to have said negro, J. S. Thomas,
arrested, and requested plaintiff to have him arrested, or
ascertain his whereabouts, for such fraudulent conduct and
acts; but said negro was not found after search by all said
parties, and it is believed by the parties that he left said
community after having received said money on said draft as
aforesaid.
"The
plaintiff, J. S. Thomas, had also formerly been a depositor
at the said defendant bank, but closed his account there
September 14, 1908, and has done no business with said bank
since said date. On the books of said defendant bank the
address of said plaintiff, J. S. Thomas, is Lyman, Miss., and
said defendant bank, while it was doing business with said
plaintiff, sent his statements and other communications to
him at Lyman. The said sum of two hundred and eleven dollars,
or any part of it, was never placed to the credit of said
plaintiff, and he has never received said money or any part
thereof, from any source. The said plaintiff knew, when he
wrote to the said Florida bank, that one (another) J. S.
Thomas had been a depositor and customer of said defendant
bank, but did not know him, and had never seen him, but did
know that such a person did live, or at least had lived, in
Gulfport. That all the indorsements upon said draft, Exhibit
A hereto, are now as each originally was after being returned
to said Florida bank, but the statement of 'J. S.
Thomas' on the back thereof is not the signature of the
plaintiff, that is to say, not his handwriting, nor was it
written there with the knowledge or consent of the plaintiff.
The words 'Paid Oct. 27, with our draft No. 12716 favor
of First National Bank, Gulfport, Miss.,' were written on
the back of Exhibit A by the DeFuniak Springs bank upon
issuing Exhibit B hereto. That the negro, J. S. Thomas, who
unlawfully took said draft, Exhibit A, as aforesaid, never
had any deposit or balance with the said De Funiak Springs
bank, and the said draft was not intended for him, but for
the plaintiff; but said defendant bank knew nothing of either
of said parties named J. S. Thomas having or not having any
deposit in said Florida bank, nor which of said parties it
was intended to have said draft, and was wholly without
knowledge in that regard, but defendant bank did know that
the plaintiff had been a depositor in defendant bank, and
that his signature was there on file. It is further agreed
that said cause may be heard without further pleadings before
the judge of the circuit court aforesaid, without a jury, and
before the supreme court if an appeal is taken, upon the
above statement of facts (and the law applicable thereto),
which are all the facts in the case."
