Talbot v. Bank of Rochester — 1 Hill & Den. 295

Majority

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Talbot vs. Bank of Rochester.

Headnote

T., the owner of a certificate of deposit m the bank of L., payable to order, caused it to be endorsed with directions that it should be paid to W. & Co., and then transmitted it to them by mail, though without their knowledge or request. It never reached W. & Co., but was stolen on its way, and their names forged upon it; after which, it came to the defendants’ hands in the ordinary course of business, who collected the money on it, supposing themselves to be the owners; Held, that T. had an election, either to sue the defendants in trover as for a conversion of the certificate, or to recover the amount in an action for money had and received.

And though the bank of L. had been guilty of laches in apprising the defendants of the forgery after the payment of the certificate; held, that this constituted no defence against T.’s claim, however the matter might stand as between the defendants and the bank.

Under such circumstances, a recovery and satisfaction in favor of T. against the defendants, would transfer the property in the certificate to the latter.

The owner of a certificate of deposit who’endorses it payable to another, and sends it to him by mail, but without his knowledge, retains the property in it until the endorsee receives it.

Assumpsit, for money had and received, tried before Dayton, C. Judge, in the year 1840. The plaintiff’s claim was for a sum of money received by the defendants from the Livingston County Bank, under the following circumstances: In July, 1838, the plaintiff enclosed in a letter directed to H. B. Washburn & Co., New-York, a certificate of deposit iii the Livingston County Bank, of $162,50, which he had purchased, and which was payable to the order of one John Kerr. When enclosed in a letter, it was regularly endorsed thus-: “Pay H. B.. Washburn & Co. (Signed,) John Kerr.” H. B. Wash-burn & Co. had no knowledge of the transmission of the certificate to them, at the time, nor did it ever reach them; but on its way to New-York it was stolen, and their firm name forged upon it. It purported, when produced at the trial, to have been subsequently endorsed by J. Hinsdale, and then by Kempshall <fc Bush, who, on the 2d of August, 1838, delivered it to the defendants in the ordinary , course of business, the latter passing it to their credit. Imme

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diately thereafter it was sent to the Livingston County Bank, by whom it was paid to the defendants. On the 25th of September, 1838, the Livingston County Bank apprised the defendants that the certificate-had a forged endorsement upon it, which was the first and only notice of the fact they ever received. Before the- -commencement of this suit, the plaintiff had written the defendants, -requesting payment of the amount of the certificate, but the latter declined paying.

The defendants moved for a nonsuit upon the following grounds, viz.; 1. That there was no such privity between the plaintiff and defendants, as entitled the former to maintain this suit: 2. That the title or property in the certificate was not in the plaintiff: 3. That there had been laches in giving notice of the forgery, &c.

The circuit judge overruled the motion, to which the defendants’ counsel excepted; and a verdict having passed in favor ofthe plaintiff for the amount'of the certificate and interest, the defendants now moved for a new trial on a bill of exceptions.

S. Stevens, for the defendants.

J. R. Lawrence, for the plaintiff.

The questions in this case depend on nearly the same principles with those in the Canal Bank v. The Bank of Albany, (ante, p. 287;) but some additional considerations arise.

1. It is entirely clear that the plaintiff might, (supposing the tifie not to have passed by his endorsement and putting the certificate in the post office,).have maintained trover against the defendants, for a conversion of the certificate; and they having 'procured the money upon it, the plaintiff thereby became entitied to bring this action for money had and received, at his election. This doctrine is quite familiar, and Lamine v. Dorell, (2 Ld. Raym. 1216,) is in point.

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2. The merely putting of the letter in the post office, directed to H. B. Washburn & Co., though the certificate endorsed to them by the plaintiff was enclosed, did not pass any interest to them. They never received it; of course, never assented to the endorsement, and the transfer was therefore incomplete. The property of the certificate remained in the plaintiff. It was not mailed at the request, nor with the privity of Wash-burn & Co. The plaintiff retained the right to alter or strike out the, endorsement.

3. It is said the plaintiff cannot recover, by reason of laches on his part; and the objection was, in this case, taken at the trial. Laches is charged on the Livingston County Bank, which, it is said, could not recover against the defendants; and it is insisted that their laches are imputable to, or operate to the prejudice of, the plaintiff. But even admitting that the Livingston County Bank, in order to a recovery by them, were bound to have given earlier notice, it is not perceived that the plaintiff must therefore suffer. That he might have recovered his money of that bank, is no reason why he should not have an action against the. defendants. A man who tortiously takes a note from- the holder, which is made by A., and obtains the money of A., is none the less liable to an action at the suit of the holder, because A. may have paid under circumstances which would entitle him to defend against an action by the wrongful taker. It is not pretended, that the plaintiff has been personally guilty of laches. EBs note .was stolen on its way to New-York, and passed off by a forged endorsement, under circumstances which prevented any title passing, even to a bona fide purchaser of it. (Chit, on Bills, Am. ed. of 1839, p. 337, and note. Id. 258, and 260. 6 Esp. R. 57. 2 Burr. 1216.) He is in the same condition as if any chose in possession had been stolen from him and transferred to the defendant, who had converted it into money by sale to another. In such case, no one would doubt the plaintiff’s right to an action for money had and received, A recovery and satisfaction in this suit, will transfer the property in the certifícate to the defendants; • by operation of law;

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and any injurious consequences to the latter, arising from supposed neglect in the Livingston Cotinty Bank, must be settled between the two banks. Beside, the defendants might, at any rate, if they had exerted the diligence which they now require of others, have had an immediate action" against Kempshall & Bush, their own endorsers.

But if notice were necessary, it is far from being clear that it was not given as speedily as could reasonably be required, under the circumstances.

New trial denied.