Warren v. Smith

• Citation: 100 P. 1069,35 Utah 455
• Decision Date: 23 March 1909
• Docket Number: 1949
• Court: Utah Supreme Court
• Parties: C. H. WARREN, Appellant, v. JOHN F. SMITH, Respondent

100 P. 1069

35 Utah 455

C. H. WARREN, Appellant, v. JOHN F. SMITH, Respondent

No. 1949

Supreme Court of Utah

March 23, 1909

APPEAL from the Second District Court, Weber County.--Hon. J. A Howell, Judge.

Action to recover money. The opinion states the facts. From a judgment for the defendant, the plaintiff appealed.

REVERSED.

P. L Williams, Geo. H. Smith, John G. Willis and H. B. Thompson for appellant.

APPELLANT'S AUTHORITIES.

Title to the check never passed out of the plaintiff. (Randolph on Commercial Paper, sec. 1893; Anderson v. Bank, 20 N.Y.S. 511; Palm v. Watt, 7 Hun 317; sec. 1575, Compiled Laws of Utah 1907; Bank v. Bank, 1 Hill 387; Anderson v. Bank, 20 N.Y.S. 511; Compiled Laws 1907, sec. 1575; Beattie v. Bank, 174 Ill. 571, 43 L.R.A. 655; Foltier v. Schroder, 19 La.Ann. 17, 92 Am. Dec. 521; Roach v. Woodall, 91 Tenn. 206, 30 Am St. Rep. 883; sec. 1611, Compiled Laws of 1907.

A. R. Heywood for respondent.

STRAUP, C. J. FRICK and McCARTY, JJ., concur.

OPINION

STRAUP, C. J.

The plaintiff alleged in his complaint that on March 1, 1904, the Southern Pacific Company, for services rendered, issued and delivered to him its pay check, payable to his order, and drawn on the treasurer of the Southern Pacific Company, in the sum of $ 63.20; that on March 20th the check was stolen from or lost by the plaintiff and his indorsement forged thereon; that the check afterwards came into the possession of the defendant, who collected thereon the sum of $ 63.20; that the plaintiff received no part of the money evidenced by the check; and that the defendant, by reason of the premises, became indebted to the plaintiff in such sum, no part of which had been paid. The defendant in his answer admitted the issuance of the check, that it came into his hands, and that he collected the money evidenced by it, but, on information and belief, denied that the plaintiff was the payee named in the check, denied the alleged forgery of the indorsement, and alleged that the check was paid by the drawee April 2d, and that he had no notice or knowledge of any defect of the check, or of the indorsement thereon, until more than two years after its presentment for payment to the drawee. Upon these issues a trial was had before the court.

The plaintiff testified that he was an employee--a fireman--of the Southern Pacific Company at Montello, Nev.; that the check was given him on March 23rd, 1904, by the clerk of the roundhouse foreman at Montello for services rendered by him, and that he put the check in his pocketbook; that night when he retired--in a bunk car--he placed his pants between himself and the wall, with the pockets under the pillow; that, when he arose the next morning, he found his pants across the foot of the bed, and the pocketbook and check gone; that he had not indorsed the check, and that the indorsement on the check purporting to be his indorsement was a forgery, and that he had not sold, cashed, or negotiated the check in any manner; that he did not know who took the check from him, nor who wrote or indorsed his name on it; that, when he missed the check, he notified his foreman, and that he and the foreman wrote out a message and left it at the operator's office at Montello on March 25th, and that he also wrote a letter to the master mechanic and to the superintendent of the Salt Lake Division notifying them that the check was stolen. The check itself was exhibited to the plaintiff, who identified it, and testified that the indorsement thereon purporting to be his indorsement was not his signature, and was a forgery. He further testified that he did not know the check had been paid until about a year after it had been stolen, at which time it was shown him by a special detective of the Southern Pacific Company, who then asked him whether it was the one that was stolen, and whether the signature purporting to be his signature was his, and that the plaintiff told him that it was the check, and that the signature was not his signature. The check itself shows that it was payable to the order of the plaintiff and bears the indorsement of the plaintiff's name, the defendant's name, the name of the Commercial National Bank of Ogden, and the name of a California bank, to which last-named bank the check was paid on its presentation by the Southern Pacific Company at San Francisco on April 4th, 1904.

The foregoing is, in substance, all of plaintiff's evidence. When he rested, the defendant also rested without offering any evidence. The court found the facts as follows: That the check was delivered to the plaintiff on March 23d at Montello; that it was stolen from him on March 25th; that the plaintiff had not indorsed the check, nor had he authorized anybody to do so; that the plaintiff had received no part of the money evidenced by it; that the defendant "became indorsee and indorser of said check on or about the 1st day of April, 1904, at Ogden City, Utah; that said check indorsed with the name of the payee, was transferred and delivered to said defendant on or about April 1st, 1904, by the holder, without any notice of any infirmity, and on the same day the said defendant indorsed the said check to the Commercial National Bank of Ogden, who thereupon indorsed it to the Bank of California, at San...