Merchants' Bank v. Exchange Bank

Martin, J., delivered the opinion of the court. The defendants are appellants from a judgment, by which the plaintiffs recovered the sum of four thousand eight hundred dollars, alleged to have been paid through error. The general issue was pleaded. The facts of the case are these : The defendants purchased a check, drawn by the Bank of Mobile on the plaintiffs, for the sum of two hundred and thirteen dollars and fifty cents, which had been altered so as to appear to be for the sum of five thousand and thirteen dollars and fifty cents. The check was paid for this apparent sum to the defendant’s agent The fraud having been afterwards discovered, the plaintiffs claimed the difference between the real and apparent sum j and payment being refused, the plaintiffs brought the present ■suit » There is no law or usage which authorizes the party on whom a cheek is drawn, to delay payment until he receives advice of its having been drawn,from the drawer. Where a bank pays a check which has been altered and forged for a much larger amount than the true siim, it will have recourse to the party to whom, or for whose benefit it was paid, for the amount of the forgery, after its discovery. The defence is that the plaintiffs paid the check before they received any advice of it. That the forgery is apparent, and the plaintiffs were guilty of laches, in not giving timely notice. Admitting that this defence was proper under the plea of the general issue, it appears to us unavoidable. We are unacquainted with any law, requiring or authorizing the suspension of the payment of a check, until advice of its being drawn has been received. The testimony which has been introduced to establish the usage of giving advice of the drawing of checks, is insufficient to prove it to be universal, or so general, as to authorize us to receive it, having any binding force. The defendants having bought the check after the forgery had been committed, and having endorsed it gave it credit, now urge with ill grace that the plaintiffs did not notice the forgery when the check was presented to them for payment, while they (the defendants) did not do so when they purchased it. The knowledge of the forgery appears to have been first given to the plaintiffs, in a letter of the cashier of the Bank of Mobile, dated on the 17th July, 1837, and they informed the defendants of it on the 2d August following. The three grounds set up in the defence were proper matters for the consideration of the jury, and they have disregarded them. The evidence fully disproves the plea of the general issue, and establishes the facts and allegations of the petition. It is, therefore, ordered, adjudged and decreed, thát the judgment of the Commercial Court be affirmed, with costs.