Tumilty v. Bank of Missouri

RYIAITD, J. Prom the above statement, it will be seen that the appellant, places his reliance for a reversal of the judgment of the court below, upon the ground, that the facts disclosed in this case, amount to forgery in the obtaining of the signature of Tumilty as indorser on the note sued on. And this is the only point I shall consider in this case. In order therefore to the better understanding of the facts, I will here insert the evidence of Bernard Dillon, Henry Hudson and of George Breen. The plaintiff called George Breen the maker of the note as a witness, who testified , that he knew the defendant; that the note sued on, which is shown to him, as follows : “$540 00, St. Louis, Dec. 12th, 1846. Pour months after date, I promise to pay to the order of Richard Tumilty, five hundred and forty 00-10 0 dollars for value received, negotiable and payable without defalcation or discount at the Bank of the State of Missouri. George Breen.” Indorsed “pay to Bernard Dillon, or order” Richard Tumilty. Pay to the Bank of the State of Missouri. Bernard Dillon. And written across the face with red ink : “Protested for non-payment. April 15th, 1847, John Smith, N. P., fees 1 75-100 ;” witness said : “this is the ,•signature (pointing to it) of Richard .Tumilty; when it was written on the back •of this note, we were in his room, and I saw him write it. That is my signature as maker, and that is Bernard Dillon’s as indorser.” The above notewas then read to the jury, and the plaintiff, then read in evidence the protest and notice, which were in proper form and to which there is no objection and which it is not necessary here to notice, and then the plaintiff rested his case. The defendant then, after having called Richard King, who was about detailing a conversation which he heard between Tumilty, the defendant, and said Breen, and which conversation was objected by plaintiff and ruled out by the [198] court; called as -witness George Breen,-who testified, ‘‘that he was at the Itouse of defendant, on 22nd November, 1846. That lie came out on horseback, on Saturday evening, to see Tumilty on some business about a house he had built for him. Stayed all night at Tumilty’s. The next morning Tumilty indorsed two notes in blank at request of witness — w'e were standing near the stable-yard fence ; I had pen and ink in my pocket and printed blank notes in my hat. I asked Tumilty to indorse one for me in blank — he did so, he wrote his name, resting on the top rail of the fence. Tumilty had previously indorsed notes for me in blank : after he had written his name on this note, I looked at .it and told him his signature was not written well enough to go-in bank ; and asked him to write another, he did so. I took both notes into town with me — I never was asked by Tumilty, what sum I designed filling up the blank with at all. Tumilty indorsed for me in blank, as he had always done before, without asking any questions; I did not ask him to indorse a note for $150, nor for any particular sum whatever, one of these two blanks I filled up for $620, and put in bank. The other was not put in bank at all. Being asked, where that other note is, the plaintiff’s counsel produced a note as follows, to-wit: $550 00, St. Louis, November 25th, 1846. Pour months after date, I promise to pay to the order of Richard Tumilty, five hundred and fifty dollars for value received, negotiable and payable without defalcation or discount, at the Bank of the State'of Missouri — signed Lewis E. Brooks indorsed Richard Tumilty, George Breen, which the witness says is that other blank note; I thought I’d just let Mr. Tumilty work out his passage, and then I would show this, when he had got through. The plaintiff’s counsel had also in court some five or six other notes, which had been indorsed previously by defendant and had been negotiated and takenup, but the witness states, that the one above set forth is the identical one, which was indorsed on the top rail of the fence, and the one on which the name was written so badly. The witness further says, one of these notes was filled up for $620, and put in bank, and I lifted it; and I would have lifted the other too, if Tumilty had paid me for the house I built him — one of the notes written at the corner of the fence, that Sunday morning never was in bank; the other filled up with $620, was put in bank and I lifted it. I have suffered enough by that man Tumilty. This $540 note I took to Dillon, to get him to indorse it. Tumilty’s name was then on the note and the sum was blank. I told Dillon the note was to be filled up with $540, when I took it to him to indorse it. Cross-examined : I had obtained blank signatures to notes of Tumilty, before this time. There had been eight or nine of them before. These accommodation indorsements of Tumilty for me commenced in the year 1845. Prom time to time as I found it necessary, I got him to indorse notes in blank for me to fill up and put in hank to get discounted, to help me through my business, from 1845 up to the winter of 1846, there were eight or nine of these indorsements, I think. Question. — In all those instances, were the notes intrusted to you iu blank, after being indorsed by Tumilty ? Defendant — I object to that question, for the reason, that tlie manner in which previous notes or indorsements had been obtained was not in question here and the whole evidence, about the previous notes was objected to for irrelevancy. The court overruled the objection and the defendant excepted. Answer. — Those notes were in all cases intrusted to me in blank after being indorsed by Tumilty. I used these as it became necessary for me and I always filled up the sums myself before I put them in bank. These are the two notes Tumilty signed for me at the corner of the fence — (referring to the $620 note and’ the $-note above set out). This note for $540 (the note sued on) I got indorsed by Tumilty, sometime in May, 1846, together with another note: Tumilty signed them at the house near the New Market, two blank notes. I swear positively, that I got this, the note sued on, in May or June, 1846 ; I never used-it until afterwards when I needed it. This $540 note, now in suit, is not either of those signed by Tumilty at the fence. I never used the note, the signature on which by Tumilty, I told him was not well enough to go in bank. This note is now in my possession and never was out of my possession. Re-examined: How do you know, that this is not the other note signed by Tumilty at the fence ?- Because it has never been out of my possession since. Question. — Did you or199 not ever tell Mr. Linehey or Mr. King, that you filled up both notes, indorsed at the fence, one for $620, and the other for $540, and that you put them both in bank, when you were to put one note in bank for $150 and no more ? Plaintiff objects to the question for incompetency. Court sustains the objections and defendant excepts. Answer, — I did not tell Tumilty, when he indorsed these notes, that I should fill them up, one with $620, and the other with $540 ; I got both notes indorsed by Tumilty with his assent for me to us'e them as I pleased and when I pleased ; no particular sum was.ever mentioned. Hugh Linehey examined for defendant. I once indorsed a note for Breen, which was to go in bank — never but once. Don’t know exactly when, but the note was in blank with Tumilty’s name on it as indorser. The defendant then proposed to prove by witness, that Q-eorge Breen had admitted in his presence, that he had got Tumilty to indorse his name on two blanks in the manner stated by Breen himself above, with the understanding that he was indorsing one note only for $150, and that Breen clandestinely took away both blanks and filled them up, one for $620, and the other for $540 (the note sued on here), and that he had put them both in bank. The plaintiff objected to the evidence for incompetency as against the bank, the plaintiff. The court sustained the objection and the defendant excepted and the witness withdrew. Bernard Dillon, a witness for defendant: one of the notes in question for $540 indorsed by Richard Tumilty and deponent, is shown to deponent who says that is his signature, that he indorsed it for Breen and when he indorsed it, it was in blank. Tumilty’s name was on it, when I indorsed it. I am not positive as to the time I indorsed it, but think it was about the 12th of December, 1846,' as near as I can recollect. Breen told me when I indorsed it, that he would fill it up for $300 or $350, I am positive he told me one of these sums, but I don’t remember which ; afterwards I signed a check for Breen to draw the money and put an “F” in the check and on this account the check was returned to me by Breen, because he said, he thought it would not go in bank. It was then torn up, and another executed by me witiiout “E.” . He did not ask me to sign another note, at that time, that I recollect. He did not tell me how he got Tumilty’s name on the note; I am not positive, whether the check was in blank or filled up. I don’t recollect for what sum it was drawn, I did not examine it very closely to see. The cross-examination is not copied, nothing material to this case in it. Henry Hudson : one of the notes is shown him, the one for $620, he says that that is his signature on the back of the same. I believe it was in the early part of January in the present year (1847) that Qeorge Breen called on me and told me that he wished to put a note in bank and requested me to indorse for him, I asked him the amount for which he wanted me to indorse : He told me $300. I then asked him, who was going to indorse along with me. He said Dick Tumilty. He said “Henry” meaning me, that Tumilty is one of the best men in the. State. I agreed to indorse it, expressly understanding it was to be for three-hundred dollars. I did not indorse the note at this time and cannot say whether it was on the evening of the same day or the following day that I indorsed it. I rather think it was the day following, but not certain. The note was indorsed in my own room, and a blank check signed by me at the same time for the proceeds. These Mr. Breentookupandlefttke room. I am not aware of any other conversation at this time. The note was in blank when I indorsed it. Cross-examined: I am not aware, that after I indorsed the note, Breen said he would fill it up for $300; I do not believe that anything of that kind was said; Mr. Breen appeared to be in a hurry and there was very little said, at the time, when Breen brought the note to me; when I indorsed it, I am not aware that anything important was said by Breen. I can’t say that he said anything at all that I remember, on the occasion of the indorsing; I don’t remember .anything that Breen said before or after the indorsing; after I had indorsed the note, there was nothing of this kind said, by Breen, to-wit — that he would fill it up with $300, nor anything to that effect, that I recollect; when Breen first called on me and asked me to indorse the note, I can’t say whether or not he had it with him. He. did not produce it; at the time that Breen first called on me, and asked me to indorse this note [200] he clid not say, that. I recollect, that if I would indorse this note in blank, he would fill it up with only $300. There was nothing then said about indorsing a note in blank; I mean, when I say it was the express understanding, that the note was to be filled up with $300, that that was my understanding. I can’t say whether or not Breen at that time told me he would bring me a blank note to sign — I don’t know that this note, here exhibited, is the paper that I agreed to sign in the first conversation; at the time I did sign, Tumilty’s name was on it and the only one on it. I expected Breen to fill up the note. On being asked, why deponent did not fill up the note himself, he replied that he considered Breen a man of high honor and integrity and one in whom he placed implicit confidence and thereupon he intrusted the filling up of the note entirely to him. Direct examination resumed : When Breen first spoke to me, he told me he wished to put a note in bank for $300, and he wished me to indorse for him, I can’t say that at time Breen had a $300 note; I recognize this note here exhibited to mo for $630, as the note that I indorsed for Breen, with the understanding at the time, that it was to be filled up with only $300; I mean that such was my understanding; I got this understanding the time that Breen requested me to indorse for him. This paper on which this $630 note is written and printed, was not then shown to me. This (the $630 note) is the paper which Mr. Breen brought to me to indorse at our second meeting. This is the only one that was spoken of at either interview. On the occasion that I indorsed the note, there was nothing at all said about a note that I remember, excepting Breen handed me this paper, in blank, meaning the $630 note, and I indorsed it.” There was other evidence given and excluded, on motion, rfrom the jury, but the above is the most important and indeed may be said tobe the evidence in the case before the jury. The defendant then asked the court to give the instructions above set forth in his statement of the case numbered one and two, which were refused, and the court then gave the instruction therein set forth on its own motion. I cannot come to the conclusion that the evidence in this case will warrant this coui tin saying that the indorsements were forgeries. I am satisfied, on the contrary, that the testimony, taken in its full latitude for the defendant, does not make the indorsement of either Tumilty or Dillon a forgery. I have examined many of the authorities cited by defendant’s counsel, and would fully agree with most of them. But the facts here do not go beyond a breach of good faith, a breach of confidence. Here is a person in the habit of indorsing for another, in blank, .trusting to him to fill up and to use the notes for what amount and at what time he may need them most, giving full faith in his prudent use of said authority. ■ The notes are used from time to time, and paid, or, in the language of the witness, “lifted” at maturity. One of these notes comes to the plaintiff in good faith for value, without any suspicion of a breach of confidence, of any fraud, and because the defendant says the note was to have been for a much smaller sum, he will not now pay it — says it is a forgery. I have stated that the facts here do not extend beyond a breach of confidence. I have my doubts whether, as to the defendant, Tumilty, they even go that far. There is a great deficiency in his proof of .the charge. The witness, Breen, gives a reasonable account of the transactions of the indorsements at the fence, and he states that the note sued on, in this case, is not one of those then and there indorsed. But had the defendant made out by proof what his counsel contends he has in this case, still in my opinion it would then have only amounted to a breach of confidence and not to a forgery. To declare such a transaction as is in proof in this case a forgery, would give cause of just and serious alarm to the commercial community. It is better that he who places implicit confidence, and thereby gives the power of injury to another, should suffer himself, rather than that the public should receive detriment from such act.(a) The case [201] from 5 Ohio R. 222, Bank v. Smith, is an authority in point, and I am satisfied that justice, public policy and the interests of society are in unison with the law, in asking of this court an affirmance of the judgment of the court below. The other Judges agreeing, this court accordingly affirms the judgment of the court below. Footnotes [a] (a) See Farmers Bank v. Garten, 34 Mo. R. 119; Henderson v. Bondurant, 39 Mo. R. 369; State v. Kroeger, 17 Mo. R. 561.