Costelo v. Barnard

Morton, J. This case comes here on appeal by the plaintiff from an order sustaining a demurrer to the second and third counts of the declaration and entering judgment for the defendant. The action is one of tort. The second count alleges in substance that the defendant, intending to deceive any person to whom it might come, made a written instrument in imitation of and purporting to be a negotiable promissory note of the town of Watertown, and unlawfully signed thereto the names of the persons holding the offices of selectmen and treasurer, and, knowing that any person to whom such instrument might come would be deceived thereby though using reasonable diligence, carelessly permitted it to pass from his custody and control, and the plaintiff being in the exercise of due and reasonable care and diligence took the same before maturity for value. [264] The third count omits the allegations that the instrument was made by the defendant with the intent to deceive and defraud any person to whom it might come, and alleges that the defendant knew that it was worthless. Otherwise the allegations are substantially the same as those contained in the second count. A copy of the instrument is incorporated into the second count, and annexed to the third count, and represents an instrument payable to bearer. We think that the ruling was right. It is manifest that there was nothing harmful in the instrument itself, and the defendant, therefore, owed the plaintiff no duty to prevent its escape or loss. It became harmful to the plaintiff only by the act of some third person which could not be reasonably anticipated and which the defendant was not therefore required to guard against. His knowledge that the note was worthless and his execution of it with the intent to defraud any one to whom it might come do not without anything more render him liable to the plaintiff. In order to render him liable to the plaintiff, some act of commission or some representation or misfeasance on his part which caused the plaintiff to take the note as genuine, is necessary. ■Mere negligence on his part, though accompanied by a general fraudulent intent in executing the note, is not enough to render him liable. See Arnold v. Cheque Bank, L. R. 1 C. P. D. 578. It is manifest that no matter how much the defendant may have intended to deceive any one into whose hands the instrument might come, no wrong was done to any one and no possible right of action accrued to any one, so long as the note remained in his own possession and he did nothing to give it currency. Judgment affirmed.