Catskill Nat. Bank v. Lasher

Prior to August 24, 1909, one W. Platt Fisher presented to the plaintiff bank two promissory notes, purporting to be indorsed by Herbert W. Lasher and Nelson P. Lasher, who are the defendants in this action. One of these notes was for $100 and interest, dated May 25, 1909, payable in four months. The other note was dated August 9, 1909, payable in four months, with interest, and for the sum of $150. The plaintiff discounted the said notes, paying the proceeds thereof to W. Platt Fisher.

Upon the 24th of August, 1909, the plaintiff’s cashier, P. Gardner Coffin, became suspicious of the genuineness of the signature of Nelson P. Lasher upon these notes. Nelson P. Lasher was the father of Herbert W. Lasher and the father-in-law of W. Platt Fisher. Upon that day Coffin went to Nelson P. Lasher and Herbert W. Lasher, and learned that their signatures upon the said notes were forgeries. Coffin thereupon

At the close of the evidence both parties moved for a directed verdict. This submitted to the court the questions both of law and of fact, and thereafter an order was entered dismissing plaintiff’s complaint. No decision, however, except the said order was ever made by the judge and no findings of fact and law were ever signed by him. By strict practice this case should be sent back to the Special Term judge for findings of fact and law, upon which this judgment can stand. But with the power given to us under section 1317 of the Code of Civil Procedure, inasmuch as the conclusions to be drawn from the evidence are

The learned trial court dismissed the complaint upon the ground that there was no consideration for the defendants’ promise. This, we think, was error. If these signatures were in fact forged, as is assumed throughout the case, the bank at the time of the discovery had at once the right to disregard the notes and to sue W. Platt Fisher for moneys had and received. After taking from these sureties their guaranty of the genuineness of the indorsement and their guaranty of the payment of the notes when due, this right was suspended, and the bank had no authority to demand payment thereof from the principal until the due date of the notes. This extension of time was in law a sufficient consideration for the defendants’ promise.

It seems to me clear, however, upon the facts of the case that this contract was made for the purpose of compounding a felony. It is clear that Coffin understood that these signatures were forged. He had gone so far as to swear to an information, upon which a warrant was issued against Fisher for the forging of the signatures. It is nowhere claimed that they were genuine, and it is assumed throughout the case that they were wrongfully put upon the note by Fisher. The defendants were warned that Coffin would come to their house that night “ in shape to do business.’’ He came there with a constable armed with a warrant for Fisher’s arrest. This guaranty was signed by the defendants, relatives of Fisher, for the purpose of saving the son-in-law and brother-in-law from arrest. That such was their purpose is clearly evidenced by the facts in the case, and was known to Coffin at the time that he took their guaranty. Knowing that it was so understood and intended x by the defendants, the bank, as represented by Coffin, will be deemed to have assented thereto. So that if the contract had

The burden of the plaintiff’s contention rests upon the claim that the defendants are estopped from denying the validity of their indorsements upon these original notes, and the action is brought upon those original notes. Plaintiff rests largely upon the case of Rothschild v. Title Guarantee & Trust Co., ( 204 N. Y. 458 ). I am unable to find, however, in this transaction any elements of an equitable estoppel. There was no representation that these indorsements were originally genuine, and if there were there was no reliance upon any such representation by Coffin, who knew the fact that they were not genuine. The plaintiff has been in no way misled to its prejudice, and failure to prosecute and demand payment is based solely in its reliance upon this new guaranty contract, which is invalid because tainted with crime. In the case cited, upon which reliance is placed, the plaintiff who sought to have canceled a mortgage, made payments upon a mortgage upon which her signature had been forged, but of which fact the defendant had no knowledge, so that the defendant took no steps for the collection of said mortgage, relying upon the validity of the instrument, which was thus asserted by the plaintiff in making payment thereupon. In that case the defendant was misled, and it was held so far to its prejudice as to create an equitable estoppel as against the plaintiff. As stated before, however, this element is wholly lacking in the case at bar. The judgment should, therefore, be affirmed, and this court should find as a fact that the memorandum of guaranty, which is the only evidence of defendants’ liability, was made in consideration of

All concurred, except Kellogg, J., dissenting.

Order and judgment affirmed, with costs.