Hoge v. First National Bank

Moran, J. The contention of the appellant is, that the indorsement of the name William Robins on the draft, was a forgery, and a largo number of cases are cited to us by counsel, many of them similar, in some of their features, to this case, in which courts have held indorsements to be forgeries-Of those cited, Dodge v. The National Exchange Bank, 30 Ohio St. 1; Palm v. Walt, 7 Hun, 317; Kohn v. Watkins, 2 Kansas, 691, and the Agricultural Investment Company v. The Federal Bank, 45 Upper Canada, Queen’s Bench, 214, seem to be nearest in support of counsel’s contention. In the Ohio case one Frederick B. Dodge was the holder of a certificate of indebtedness, which he indorsed in blank and inclosed in a letter and sent by mail. The letter was stolen from the mail and the certificate presented to the paymaster, by one who falsely represented himself to be the Frederick B. Dodge. The paymaster gave a check payable to Frederick B. Dodge, and took up the certificate. The personator of Dodge indorsed the check with the name of Dodge and it was paid. The court held the check was payable to the owner of the certificate, was made to his order and not paid to him, but to a stranger who forged the indorsement of his name. The case in 7 Hun, was that one Raleigh assumed the name of John M. Gillespie, while temporarily staying in Texas, and under such name wrote letters to the mother of the true John M. Gillespie, representing himself to be that person, who had been unheard of for several years, and asking assistance to enable him to return. The mother inclosed a check payable to the order of John M. Gillespie, San Saba, Texas. The letter was taken out of the post-office by Raleigh, and he indorsed the check with the name of John M. Gillespie, and was paid the money on it by one Ward. The indorsement was held a forgery, and Ward could not recover on the check. In 26 Kan. 691, one McLain represented that one Becker, a person in esse and a former resident of the county, desired a loan on premises purporting to be situated in the county, and forged the name of Becker to an application. The loan was accepted, and a mortgage and note sent McLain, to be executed by Becker, accompanied by a draft payable to Becker for the amount. McLain forged the name of Becker on the draft and indorsed his own name thereon, and obtained the money from an innocent party. Held, the name Becker was forged, and the purchaser of the draft on such indorsement could not recover. The case in 45 Upper Canada was that one Stobbs represented to the agent of a loaning company that two brothers named Bee wanted a loan. The agent filled a blank application, upon Stobbs’ statements, and gave it to him to have it signed. Stobbs returned it, signed John T. Bee and Isaac Boes P. O. Wheatley, and containing a description of their property. The loan was taken and checks sent payable to Isaac Bee and John T. Bee, which were obtained by Stobbs, and he indorsed them with the names of the payees and also with his own, and obtained the money. The Bee brothers knew nothing whatever of the transaction. The indorsements were held forgeries, and the holder could not recover against the loan company. In all these cases, it will be readily seen, the real person to whom the drafts or checks were made payable was present to the mind of the drawer when the draft or check was made. The making of the drafts may have been induced by fraud or false statements, their mailing or delivering induced by some trick, but the real person to whom the money was to be paid was always in the intentions of the drawer, and some one not that person, by some trick or fraud, got possession and improperly forged the name of the real person who was in the mind of the drawer. These cases do not rule the one under consideration, nor do any of the other cases cited by counsel. Each ease must be governed by its own facts. The record shows that there was, at the time the fraud in] this case was perpetrated, a man at Chebanse, who was known in that place, so far as he was known at all, by the name of William Eobins. There is nothing to show that such was not his true name, no evidence that he was ever known anywhere by any other name. He, by correspondence, made himself known to Sanford and Hoge, by that name, giving his address as at Chebanse, and throughout, the negotiation was carried on with the man at -Chebanse, known as William Eobins. ¡Neither Sanford or Hoge, so far as appears, overheard of William Eobbins of Lockport, and he was at no time within their mental cognizance. William Eobins of Chebanse, represented that he himself wanted to make the loan, that he was worth four thousand dollars, and that he had the title to the land described, and produced an abstract which showed title to the land in William Eobins. He, in the name by which he was known to Sanford and Hoge executed the note and mo rtgage which formed the cohsideration for the draft, and there is not the slightest doubt that they intended the draft should be paid to the identical individual with whom they had corres2Donded, and who executed the note and mortgage for which it was given. He committed a crime, it is true, but his crime was not forgery, but obtaining money by false pretenses. He represented that he owned the land, and the 2U’oduction of the abstract aided the 23retense that he had a title to it, and led Sanford and Hoge to rely ujoon his statement and deal with him in the belief that he had the title to the pro]3erty. Owing to the identity of name, the true abstract was used to lend sup2>ort to the false 2oreten£e, but tile peipetrator of the fraud never 2U'etended to be any other than the 2jei'son living for the time at Chebanse, and known as William Eobins. The draft then was paid upon the indorsement of the precise 2)erson who was in the conception and present to the mind of the drawer and sender of it. Robertson v. Coleman, 4 N. E. Reporter, 619. There is, under the circumstances of this case, no question of negligence, on the 2>art of the defendant bank, to be considered. The case presents a question of fact only. The draft was paid to the exact party to whom it was made payable, and the judgment of the court below must be affirmed. Judgment affirmed.