Opinion
No. 1207.
October 5, 1933.
Appeal from District Court, Parish of Iberville; Wm. C. Carruth, Judge.
Action by Iberville Trust Savings Bank against the City Café and others. From a judgment sustaining named defendant's exception of no cause of action, plaintiff appeals.
Affirmed.
Borron, Hebert Owen, of Plaquemine, for appellant.
Schwing Obier, of Plaquemine, and Laycock Moyse, of Baton Rouge, for appellee.
In the original opinion rendered in this case in June, 1932 (143 So. 73), we held that under section 65 of Act No. 64 of 1904, pp. 147, 157, Negotiable Instruments Statute, the indorser who negotiates the instrument, by a qualified indorsement, warrants that it is genuine; that the title is good, etc.; and, that under section 66 of that act, the indorser without qualification is liable to the same warranties, including the warranty of the genuineness of the negotiated instrument. These two sections of that act clearly impose the obligation on the indorser to warrant or guarantee that the instrument is genuine.
The check or draft which brought about this suit by plaintiff bank was drawn on it by C.C. and C.L. Whitaker for $193.52, on May 8, 1931. On the back of this check were the names, in the following order: I.B. Smith, R.E. Martin, E.F. Kinberger, and City Café — all apparently indorsers.
This check or instrument, the petition of the plaintiff bank alleges, is thereto "attached as part and parcel hereof."
The recitals of the instrument must therefore be considered as made in the petition. Tremont Lumber Company v. May, Assessor, et al., 143 La. 390, 78 So. 650.
Evidently, the annexing of that check by plaintiff bank to its petition constituted a legal assertion that the City Café, the last indorser, and by which the check had been collected from the bank, warranted that the instruments were genuine, as provided for in sections 65 and 66 of Act No. 64, 1904. This warranty included a guaranty that the signatures prior to that of the City Café, of the indorsers on the check, were genuine. Without any allegation or averment that one or more of the signatures on the instrument was or were spurious or forged, the bank could certainly not recover judgment against the City Café, because without such charge the City Café could not be held liable to the bank for the amount of the check.
In the original petition of the bank, as against the City Café, there was no allegation by plaintiff that the name of any of the indorsers on this check was spurious or forged as was fully stated in our original opinion, and which calls for no repetition in this opinion. The only allegation of forgery mentioned in the original petition of the bank was that the drawers of the check, C.C. and C.L. Whitaker, notified plaintiff bank that the name of R.E. Martin, one of the indorsers on the check, was forged, and that after it had paid the check to the agent of defendant City Café, it had informed the agent of the warning it had received from the Whittakers.
We held that by reason of the notification, the bank had received from the Whitakers, and their conduct in this case, a cause of action for forgery had been set out against them in the original petition of the bank, but that this cause of action could not be used against the City Café. As there was no allegation, as against the City Café by the bank in its original petition, that the signature of R.E. Martin was forged or was spurious, we held that the bank's petition disclosed no cause of action against the City Café, as we concluded that it could not be made liable until proof was made that the signature of R.E. Martin was forged and that there could be no cause of action authorizing such proof without an allegation of forgery. The charge of forgery directed against the Whitakers only did not meet the requirements of the situation, as the City Café was vitally interested in maintaining the genuineness of Martin's signature and the averment of forgery should also have been made a cause of action against it by the bank.
In September, 1932, more than a year after the dismissal of the suit, the bank filed what it terms an amended petition, in which it is asking judgment against the City Café, in the event that the court should hold the check to have been a forgery and for that reason denies relief against C.L. and C.C. Whitaker.
In the case above cited, Tremont Lumber Co. v. May, 143 La. 389, 78 So. 650, the court said:
"A petition which does not show a cause of action is one on which no judgment can be pronounced, and is, legally speaking, no petition, and hence cannot be amended."
We rendered a judgment in the original suit herein, which is at least binding on this court, holding that plaintiff bank had shown no cause of action and for that reason dismissed the suit of the bank as against the City Café.
There was therefore nothing to amend on the present demand, as no cause of action had been set out by the bank against the City Café, in its original suit. The lower court should not have allowed the petition termed an amendment, and in that respect the court was in error.
In this amended petition, the bank, as against the City Café, merely reiterated the allegations of its original petition in which no cause of action was alleged and makes no charge that the signature of R.E. Martin, as an indorser of the check, was a forgery. In this, its supplemental or amended petition, if the bank had alleged the forgery of R.E. Martin's signature, this supplemental petition, as it is shown that it was served on the City Café, would be considered as the beginning of a new suit. Tremont Lumber Co. v. May, 143 La. 390, 78 So. 650. There was, however, no such allegation, and therefore no new suit filed herein against the City Café which filed an exception of no cause of action leveled at the original and supplemental petition. This exception was maintained by the district judge, and correctly.
Judgment affirmed.