Winn v. First Bank of Irvington

• Decision Date: 08 December 1978
• Citation: 581 S.W.2d 21
• Parties: 25 UCC Rep.Serv. 774 C. R. WINN, d/b/a Meade Farmers Supply, Appellant, v. FIRST BANK OF IRVINGTON, Citizens Bank of Elizabethtown, Gwendolyn Roe, and Jeffrey Roe, Appellees.
• Court: Kentucky Court of Appeals

Page 21

581 S.W.2d 21

25 UCC Rep.Serv. 774

C. R. WINN, d/b/a Meade Farmers Supply, Appellant, v. FIRST BANK OF IRVINGTON, Citizens Bank of Elizabethtown Gwendolyn Roe, and Jeffrey Roe, Appellees.

Court of Appeals of Kentucky.

Dec. 8, 1978.

Rehearing Denied March 2, 1979.

Discretionary Review Denied June 5, 1979.

Danny E. Darnell, Stone & Darnell, Brandenburg, for appellant.

J. Henry Gibson, Gibson & Miller, Hardinsburg, for appellees, Gwendolyn and Jeffrey Roe.

Wade F. Richardson, Richardson & Richardson, Brandenburg, for appellee, First State Bank of Irvington.

Thomas P. O'Dell, Bondurant, Whitlow, Scott & O'Dell, Elizabethtown, for appellee, Citizens Bank of Elizabethtown.

Before COOPER, GANT and WINTERSHEIMER, JJ.

WINTERSHEIMER, Judge.

This appeal is from a summary judgment entered March 23, 1978, which required that a check must have been physically delivered to the payee thereof, in order that the payee may recover from a collecting bank for payment of a forged endorsement.

In January 1976, appellee Jeffrey Roe owed the appellant, Meade Farmers Supply, the sum of $16,000.00. Gwendolyn L. Roe, mother of Jeffrey Roe, drew a check on her account with the First State Bank of Irvington, in the amount of $5,000.00, making the check payable to the order of Meade Farmers Supply. Appellee Gwendolyn Roe maintains that the check was a loan to her son. Appellant, upon discovery that the check had been made payable to its order, but had not been delivered, visited Gwendolyn Roe and her husband in April or May of 1976, to inquire about the check.

A notation on the left-hand corner of the check in question states "fertilizer, seed and herbicides on Jeff Roe account." Instead of taking the check and applying it to the debt owed to the appellant, appellee Jeffrey Roe took the check to the Radcliff branch of the Citizens Bank of Elizabethtown, where he endorsed the check "Meade Farm and Supply", opened an account in the name of the said endorsement and deposited the check therein. Appellee, Citizens Bank of Elizabethtown, by the testimony of its employee-teller, accepted the endorsement made by Jeffrey Roe and deposited the check to the new account. Suit was filed against the Citizens Bank of Elizabethtown for damages for having paid the check upon the forged endorsement. The matter was submitted to the trial court on the motion of each of the parties for summary judgment. The motion of Citizens Bank was sustained, the motion of Meade Farmers Supply was overruled and all claims of all parties against all other parties were dismissed with prejudice. The costs of this action were adjudged against Meade. This appeal followed.

Appellant sets out the following questions:

1) Did the trial court commit reversible error when it ruled that there must be a delivery of the check to the payee before the payee has the capacity to sue a collecting bank for payment of same on a forged endorsement, pursuant to KRS 355.3-419(c)?

2) Was the finding by the trial court that the check in controversy was drawn by Gwendolyn L. Roe and delivered to her son for the purpose of making a loan or advance to him erroneous based on the evidence?

3) Was it error for the trial court to deny the plaintiff/appellant's motion for summary judgment?

4) If appellee Citizens Bank of Elizabethtown is liable for paying the check over a forged endorsement, is appellant entitled to damages, not only compensatory but punitive, and for the appellant's expenses incurred due to said conversion?

Appellee Citizens Bank of Elizabethtown maintains that the summary judgment issued by the trial judge should be affirmed because a payee to whom a check is never delivered has no cause of action against the collecting bank. It also contends that even if the summary judgment is reversed, appellant is not entitled to a summary judgment because of the existence of several issues of material fact associated with the defense provided by KRS 355.3-419(c)(3).

Appellee First State Bank of Irvington, the drawee bank, argues that the summary judgment should be affirmed because the appellant makes no claim which can be sustained against the Irvington Bank. Irvington maintains that the finding by the trial court that the check was drawn by Gwendolyn L. Roe, delivered to her son for the purpose of making a loan to him and was paid by the drawee bank in accordance with her wishes, is based on the evidence, and therefore, should be upheld. Gwendolyn Roe made no complaint to the drawee bank concerning the payment of the check.

Gwendolyn Roe states that only one of the arguments set out by the appellant has any application to her, and she believes that the finding by the trial court that the check in controversy was drawn by her, and delivered to her son for the purpose of making a loan or an advance to him, is correct and based on the evidence. She contends that the...