Holloway v. . Barbee

Connor, J. On 9 March, 1929, the defendant, Virginia Eire and Marine Insurance Company, of Richmond, Va., caused its general manager, J. M. Leake, to draw a draft on said company, for the sum of $2,054.25. This draft was drawn at Richmond, Va., and was payable, at sight, to the order of Mary E. Holloway, administratrix of W. P. Holloway, when presented for payment to the State-Planters Bank and Trust Company, Richmond, Va. On its face there is a recital to the effect that payment of the draft, when properly endorsed, would constitute full satisfaction of all claims and demands for loss and damage by fire which occurred on 12 November, 1928, to property described in policy No. 25338, which was issued by said company through its local agent at Durham, N. O. On the back of the draft, there was a notice in words as follows: “Notice: If endorsement of draft is made by an attorney or other representative, properly certified evidence of authority must be filed with this company.” *715 Tbe draft was sent by tbe defendant, Virginia Fire and Marine Insurance Company, by mail, to its local agent at Durham, N. 0., witb instructions to deliver same to tbe payee named therein, Mary E. Holloway, administratrix of W. P. Holloway. Tbe local agent of said defendant received tbe said draft at Durham, N. C., and delivered tbe same to tbe defendant, J. W. Barbee, attorney for Mary E. Holloway, administratrix of W. P. Holloway. A few days thereafter, tbe said J. W. Barbee deposited said draft witb tbe defendant, Citizens National Bank of Durham, N. C., for collection. At tbe time of said deposit, tbe draft was endorsed in tbe handwriting of J. W. Barbee, as follows: “Mary E. Holloway, administratrix of W. P. Holloway, by J. W. Barbee, Atty.” “J. W. Barbee.” Attached to tbe draft, when same was received by tbe defendant, Citizens National Bank of Durham, N. 0., for collection, was a certificate in words as follows: “To tbe Virginia Pire and Marine Insurance Company: This is to certify that J. W. Barbee is tbe acting attorney for Mary E. Holloway, administratrix of W. P. Holloway, deceased. Annie Bell High, deputy.” Seal of tbe clerk of tbe Superior Court of Durham County. Tbe defendant, Citizens National Bank of Durham, N. 0., thereupon endorsed tbe draft as follows : “Pay any bank or banker ox order, all prior endorsements guaranteed. 11 March, 1929. Citizens National Bank, Durham, N. 0. D. P. Campbell, cashier.” Tbe defendant, Citizens National Bank of Durham, N. C., forwarded said draft, witb endorsements and certificate attached as aforesaid, by mail, to tbe State-Planters Bank and Trust Company, Richmond, Va., for presentment and payment. Upon its receipt of said draft, witb endorsements and certificate attached as aforesaid, tbe State-Planters Bank and Trust Company, duly presented same to the defendant, Virginia-Pire and Marine Insurance Company, and after said endorsements and certificate bad been examined and approved by said company, pursuant to tbe instruction of said company, charged the amount of said draft to the account of said defendant, and remitted said amount to tbe defendant, Citizens National Bank of Durham, N. C. The said defendant, *716 upon its receipt of said amount, credited the defendant, J. W. Barbee, attorney, with said amount, and thereafter paid out the same upon checks drawn on it by the said J. W. Barbee, attorney. No part of said amount was paid by the said defendant, J. W. Barbee, to the plaintiff in this action, either as administratrix of W. P. Holloway, deceased, or individually. It was admitted at the trial that the defendant, J. W. Barbee, had no authority, express or implied, to endorse the draft in the name of Mary E. Holloway, administratrix of W. P. Holloway, or to receive the proceeds of said draft, as her attorney. It was not denied, however, that the signatures on the back of said draft are in the genuine handwriting of the said I. W. Barbee. On the foreg’oing facts agreed, there was no error in the judgment that the defendant, Citizens National Bank of Durham, N. C., recover of the defendant, Virginia Eire and Marine Insurance Company, the sum of $1,500, with interest and costs. The defendant, Citizens National Bank of Durham, N. C., by its endorsement of the draft, and its guaranty of all prior endorsements, did not assume liability to the defendant, Virginia Eire and Marine Insurance Company, the drawee of the draft, for loss which the said company might sustain by payment of the draft to a subsequent holder, if such loss should be caused by the insufficiency of a prior endorsement to pass title to the draft, or to authorize payment by the drawee to a subsequent holder. In this case, the Virginia Fire and Marine Insurance Company by the notice which it had caused to be printed on the back of the draft before it was issued, had reserved the right to pass upon and determine the sufficiency of an endorsement when it appeared that such endorsement was made by an attorney for the payee, to pass title to the draft, and to authorize its payment when duly presented to the drawee. The defendant, Virginia Fire and Marine Insurance Company exercised this right at its own risk, and not at the risk of the defendant, Citizens National Bank of Durham, N. C. The last named defendant, as required by the notice printed on the back of the draft, in good faith, furnished to the Virginia Fire and Marine Insurance Company, evidence of the authority of J. W. Barbee to endorse the draft as attorney for the payee, and assumed liability for all loss which the drawee might sustain, should the endorsement of J. W. Barbee as attorney be not genuine. The loss sustained by the defendant, Virginia Fire and Marine Insurance Company was caused by the want of authority to endorse, and not by the want of genuineness in the endorsement. The judgment is supported by the decision of this Court in Bank v. Trust Co., 168 N. C., 605, 85 S. E., 5, and is Affirmed.