Tumilty v. Bank of Missouri

• Decision Date: 31 March 1850
• Parties: RICHARD TUMILTY v. THE BANK OF MISSOURI, GARNISHEE OF WM. SMITH.
• Court: Missouri Supreme Court

13 Mo. 276

RICHARD TUMILTY

v.THE BANK OF MISSOURI, GARNISHEE OF WM. SMITH.

Supreme Court of Missouri.

March Term, 1850.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

This was an action of assumpsit upon a promissory note brought by the appellee as holder against the appellant as first indorser of a note purporting to have been made by George Breen in favor of Richard Tumilty as payee, and to have been indorsed by him to Bernard Dillon, and by Dillon to the bank. The defendant below filed the statute plea, and also on the 17th March, 1848, an affidavit stating the transaction, and denying the execution of the instrument.

When the case was called for trial, the defendant presented an affidavit for a continuance on account of the absence of two witnesses, Dillon, the second indorser of the note sued on, and Hudson, an indorser on another note, supposed by defendant to have been made at the same time and in the same manner, and to have been a part of the same transaction. Upon reading the affidavit, which stated what was expected to be proved by them, the court suggested that the plaintiff might safely admit all the facts stated, whereupon it was agreed by the counsel that the written examination of these witnesses, taken down before law commissioner Watson, in a charge of forgery against Breen, should be read in evidence as their testimony, with the same effect as if the witnesses were produced in court; and the trial proceeded. The plaintiff proved the signatures by Breen, and read the note, protest, &c., in evidence, the defendant excepting, and closed his case.

The defendant proposed to prove, and offered evidence tending to prove the facts stated in the affidavit, filed with the plea, to the effect, 1st. That Breen, under pretense of getting Tumilty to indorse a note for him in blank for $150, to go in bank, had procured him to put his name on the back of two printed blank notes, by telling him that the first one was not written well enough to go in bank, and then clandestinely carrying away both blanks, which he afterwards, without the authority, knowledge or consent of Tumilty, filled up one for $540, and the other for $620, and got discounted in bank; and that Tumilty had delivered him one blank instrument, with the express agreement that it was to be filled up for $150 and no more; and that Breen had privately taken away the other without any authority being given by Tumilty with regard to it; and, 2nd. That one of these notes, the one sued on in this case, was taken by Breen to Dillon while yet blank, with Tumilty's name on it; that Breen told Dillon it was to be filled up for $300, and go in bank for that sum: that Dillon indorsed it with the express agreement and understanding between them that it should be filled up for $300 and no more; and that it was filled up and up and negotiated by Breen for $540 (with intent to defraud, of course).

But the court being of opinion that neither state of facts, if proven, amounted to a good defense, ruled out and excluded the greater part of the evidence offered, some of it on other grounds of incompetency, but chiefly upon the grounds above stated, to which exceptions were saved, and then for the purpose of more distinctly embodying the facts and the questions, the defendant asked the following instructions, which were refused, viz: 1st. If the jury believe from the evidence, that when Bernard Dillon wrote his name upon the note sued on, he was told by Breen, and it was understood between them, that it was to be filled up for three hundred, or three hundred and fifty dollars, and no more, and that Breen afterwards filled up said indorsement for a note for five hundred and forty dollars, and negotiated it to the plaintiff, and that the note sued upon in this case is the same one, they will find for the defendant. 2nd. If the jury believe from the evidence that the note sued on is one of two blank notes, on which George Breen procured the defendant to write his name as indorser, under an agreement and understanding between them that he should indorse one note only for $150, and that he got his name on two blanks, by telling him that his name was not written well enough on the first to go in bank, and then clandestinely carried away both blanks, without the consent of the defendant, and afterwards filled up and negotiated both blanks, one for $540, the note sued on, and the other for $620, when only one note was intended or authorized by defendant, they will find for the defendant. Exceptions were taken. The court, then, of its own motion, gave the following instructions, to which an exception was taken, viz: “If the jury believe from the testimony that the defendant indorsed the note in question before the same was filled up, and intrusted it to the maker, George Breen, for the purpose of being filled up and discounted at the bank, it is no defense to this action, that the said note was filled up for a different or greater amount than was intended or understood by the defendant.” Whereupon the jury were allowed to find a verdict for the plaintiff; a motion for a new trial was filed and overruled; a bill of exceptions filed and an appeal taken to this court.

HOLMES, for Plaintiff. 1. Forgery renders the instrument utterly void ab initio; no right can be given and no obligations created by it; and it is a valid defense against a bona fide holder for value without notice. Boyd v. Brotherton, 10 Wend. 93: Chit. on Bills, 286-7 and note (1); Story on Bills, §§ 410, 450, 451; Story's Notes, §§ 137, 138, 379, 380, 381, 386-7; Salem Bank v. Gloucester Bank, 17 Mass. R. 1, 30, 32; Smith v. Mercer, 6 Taunt. 76. No title can be derived through a forged indorsement. Lancaster v. Baltzell, 7 Gill & Johns. 468; 9 Gill & Johns. 342. 2. The making of a false instrument over a genuine signature is as much forgery as the making of a false signature to a genuine instrument. 5 Barn. & Cres. 750, must be genuine in every respect. Chit. on Bills, 287, and n. (1), 747, 748; Bac. Abr. title Forgery, (A), 745; Rex v. Hart, 7 Car. & Payne, 652. 3. No special intent to defraud any particular person is necessary to constitute forgery, but a general intent is sufficient; and if the probable consequence of the act be to defraud, that will, in law, constitute a fraudulent intent, and the intent will be enforced in law. Rex v. Mazagora, 1 Eng. Cr. Ca. 291; 2 Russ. on Cr. 362; Archb. Cr. P. C. 342; Regina v. Beard, 34 Eng. C. L. R. 329; Regina v. Parish, 34 Eng. C. L. R. 307; Chit. on Bills, 753. 4. The filling up of a blank indorsement for the sum of $540, when there is authority to fill up for $150 only, or when there is no authority to fill up at all, and negotiating the same with intent to defraud, of course, is forgery, and the instument is void in toto.Rev. Stat. 1845, p. 371, § 16, provides that “every person who, with intent to injure or defraud, shall falsely make, alter, forge or counterfeit any instrument or writing, being, or purporting to be, the act of another, by which any pecuniary demand or obligation shall be, or purport to be, transferred, created, increased, discharged, or diminished, &c., &c., shall be guilty of forgery in the 3rd degree.” Rex v. Hart, 7 Car. & Payne, 652 (S. C. Ryl. & Moo. Cr. Ca. 486), held by the twelve Judges of England unanimously, that the filling of a blank acceptance for £500, when there was authority for £ 200 only, was forgery. Fully recognized as law in Russ. on Cr. 721, and Archb. Cr. P. C. 342; there must be authority, Regina v. Beard, 34 Eng. C. L. R. 329; Regina v. Parish, 34 Eng. C. L. R. 307; Rex v. Forbes, 32 Eng. C. L. R. 497; Goodman v. Eastman, 4 N. Hamp. R. 455, doctrine fully discussed and defined. Breach of special confidence or trust, or negligence, confined to cases of a fraudulent use, or abuse, of a general authority, and does not extend to a case of forgery. Principle of one or two innocent persons &c., does not apply, and no party to mercantile papers can be held to warrant against a felonious forgery. Not liable in consequence of negligence. Salem B. R. v. Gloucester B. R. 11 Mass. R. 30, 2, 45; if a person pays, or receives a forged bill, he is guilty of negligence, must bear the loss himself, and cannot even receive back the money from the person it was received from or paid to, unless immediate notice be given. 17 Mass. R. 45; Price v. Neal, 3 Burr. 1354-7; Smith v. Mercer, 6 Taunt. 76; a plea that a blank was limited to $2,336, and filled up without authority for a larger sum, and therefore non est factum, held good, though no intent to defraud appeared to make it forgery. Hall v. Bank, 5 Dana, 258; a man gets a piece of paper with a name on it and makes a note over it, there being no authority, held forgery, and maker not liable--(this signature was obtained in the same manner, that the first signature of Tumilty was by Breen), Vance v. Sary, 5 Ala. R. 370; Story's Notes, § 138. It depends on the fact of authority, or not, and the doctrines of agency; as to authority, general and limited, Chit. on Bills, 33 and n.; a special authority must be strictly pursued, and an authority to sign a note at six months, is no authority to sign one at sixty days, and the maker is not liable (even where no forgery was charged), Batty v. Carswell, Story, § 169; 2 Johns. R. 48; 15 Johns. R. 44; “if the blank be filled by a person, who is authorized to do so, it will be obligatory.” Story on Bills, § 53 (and if not, not, of course); Johnson v. Blasdale et al. 1 Smedes & Marsh. 17; the delivery of a blank to be filled up, for a note makes the party an agent to fill up: if the authority be general, it is a letter of credit for an indefinite sum. Russell v. Longstaffe, Dougl. 496, 514; it limited, the note is good for the sum authorized, and void for the excess (where there was no intent to defraud charged to make it forgery). Superadd this element, and it must have been held forgery and utterly void. Mitchell v. Ringold, 3 Har. & Johns. 159, a...