Third National Bank v. Merchants & Mechanics Bank

Jenkins, P. J. The plaintiff bank, upon which was drawn a check for $322.60, payable to “ cash or order,” with the maker’s signature forged thereon, sought to recover this amount from the defendant bank, which had cashed the check for an indorser, and to which the plaintiff bank had paid the proceeds on its stamped indorsement and presentation, under an alleged mistake of fact as to the genuineness of the paper. The petition alleges that the defendant was negligent in aiding the cashing of the forged check, in that it should have inquired of the alleged maker as to the genuineness of the instrument, because it was unusual for a. check of so large an amount to be drawn payable “ to cash or order,” and that it should have inquired as to the ownership, right, and title of the indorser who presented the check, because he was a man known to be. without commercial standing, and without a place of business, or business connections- in the city, and of doubt [816] ful solvency and reliability. The plaintiff further sets forth that, as the check was drawn with the business and name of the alleged maker printed thereon, and the forgery was a clever imitation of the signature of the supposed maker, “ this, coupled with the fact of its presentation by defendant” with its indorsement, thereby “vouching for its being a genuine check,” tended to mislead the plaintiff into paying the check, and that the plaintiff itself was free from fault or negligence, but, upon discovery of the forgery, when the attention of the alleged maker was called to the cheek by its inclusion in his monthly statement as a depositor of the plaintiff, promptly notified the defendant of the forgery, offered ■to return the check, and demanded repayment of the proceeds, which it now seeks to recover under the alleged mistake of fact. The defendant excepts to the overruling of its general demurrer to the petition. It is not necessary to add anything further to the syllabus. ■Judgment affirmed. Stephens, J., concurs.