Thomas v. First Nat. Bank of Gulfport

• Decision Date: 06 May 1912
• Docket Number: 15667
• Citation: Thomas v. First Nat. Bank of Gulfport, 101 Miss. 500, 58 So. 478 (Miss. 1912)
• Court: Mississippi Supreme Court
• Parties: J. S. THOMAS v. FIRST NATIONAL BANK OF GULFPORT

58 So. 478

101 Miss. 500

J. S. THOMAS v. FIRST NATIONAL BANK OF GULFPORT

No. 15667

Supreme Court of Mississippi

May 6, 1912

APPEAL from the circuit court of Harrison county, HON. T. H BARRETT, Judge.

Suit by J. S. Thomas against the First National Bank of Gulfport.From a judgment for defendant, plaintiff appeals.

AGREED STATEMENT OF FACTS.

"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."

Case reversed.

Geo. P. Money, for appellant.

Under the facts in this case, as shown in the pleadings and agreed statement of facts, and under our statute abolishing forms of actions, the distinction between conversion and assumpsit for money had and received is immaterial; the declaration shows a good...