Central National Bank v. F. W. Drosten Jewelry Co.

OPINION. BARNES, C. (after stating the facts as above) — , The treasurer of the defendant presented the check in [657] volved in this controversy. to the cashier of the plaintiff hank, inquiring if it is good, and was informed by the cashier that it was good or all right. It was then that the treasurer of the purported payee inquired' if they would give him a cashier’s check therefor, and was given a cashier’s check as the proceeds of the check being-presented to him. The cashier in stating that the check was good or all right, and in paying same, thereby admitted that the signature of the drawer was its genuine signature and that it had sufficient funds on deposit to cover the amount named in the check; two facts which the plaintiff bank had to know, and upon both of which it was correct. There was nothing in the inquiry propounded by defendant’s treasurer to the cashier, and nothing-in the cashier’s references to indicate to the cashier that defendant’s treasurer meant to propound to him, directly or inferentially, the query as to whether or not the drawer of the check originally drew same to the payee whose name appeared therein, and for the amount therein. It is abmitted by the parties that there was absolutely no evidence or suggestions upon the face of the cheek of its having been changed as to the name of the payee or altered as to the amount for which it was originally drawn. Here we have the reputable treasurer of a most respectable business concern of St. Louis personally presenting a check to the cashier of the bank and inquiring- if this check is good, being the check in which the party inquiring- was named as payee, a situation of itself negativing the idea of any inquiry as to the name of the payee, or the manner of it being named as payee, as well as the amount named in the check. Prom the view-point of mistake alone, it is impossible to classify the error of the bank as equal to or greater than the mistake of the defendant without impugning the motive of the defendant, because the defendant in presenting the check for payment, after being satisfied as to the genuineness of the signature and the status of [658] the drawer’s account, would be bound by one of two positions, either that it took the check in the mistaken, though honest belief,that it was originally issued to it as payee for the amount therein named, or that it had been changed and altered. In the first instance the mistake may be said to have been mutual when the bank paid the check, otherwise its presention to the bank for payment would be a matter of bad faith. If the defendant did not entertain any suspicions with reference to the check having originally been made payable to it, as well as for the amount recited therein, it is beyond our comprehension to understand how it could possibly have intended to make inquiry with reference thereto of the bank cashier but when defndant’s treasurer presented this check to the bank, he in law represented that the check was genuine, and we hold that the payment of the check to the defendant was, because of the forgery (if it be forged) of the name of the payee and the amount thereof without consideration, and that the moneys so paid defendant by plaintiff in equity and good conscience never ceased to be the money of plaintiff, and that plaintiff was entitled to recover the same of defendant; and in this connection will add that as this check, if a forgery, was worthless it was not necessary to return the check nor make demand of payment of defendant prior to the institution of the suit. [Espy v. First National Bank of Cincinnati, 18 Wallace, 604, 21 L. Ed. 947; Leather Mfgs. Bank v. Merchants’ Bank, 128 U. S. 26, 9 Sup. Ct. 3, 32 L. Ed. 342; McClendon v. Bank of Advance, 188 Mo. App. 417, 174 S. W. 203; Third National Bank v. Allen, 59 Mo. 310; Marine National Bank v. National City Bank, 59 N. Y. 67; White, et al., v. Continental Bank, 64 N. Y. 316.] We are therefore of the opinion that the evidence adduced sufficed to warrant a recovery by plaintiff. But we are compelled to reverse the judgment and remand the cause for error on the part of the trial court in peremptorily directing a virdict for plaintiff. The plaintiff’s action was not upon the check, it was for money paid. The allegations of the petition were denied by answer, [659] and the burden of proof was upon plaintiff, who adduced oral testimony, not admitted to be true, to sustain it. The credibility of the witnesses and the weight to be given their testimony, in the first instance, is for the jury, and it was error for the trial court todeterminc same for the jury by directing their verdict for plaintiff. [Printz v. Miller, 233 Mo. 47, 135 S. W. 19; Staehlin v. Major, 199 S. W. (Mo. App.) 427.] In view of the above and foregoing, the Commissioner recommends that the judgment of the circuit court be reversed and the cause remanded. PER CURIAM: The foregoing opinion of Barrí ns, C., is adopted as the opinion of the court. The judgment of the circuit court is reversed and the cause remanded. Reynolds, P. J., and Allen, J., concur; Becker, J., not sitting.