Opinion
August 13, 1927.
____ for the plaintiff.
____ for the defendant.
The drawee of a draft seeks to recover the amount paid thereon on the ground that the bill of lading accompanying it was forged. Plaintiff had had correspondence with a party in Salonika, Greece, which resulted in an agreement to buy beeswax to be shipped by steamer and to be paid for by sight draft. In due time the seller sent his draft drawn upon the plaintiff. This was payable to the order of the defendant and was sent to it. Attached to it was a bill of lading to the order of the shipper, and indorsed in blank by him. Defendant indorsed the draft to the order of Guaranty Trust Company of New York. It also indorsed the bill of lading, but in blank. The trust company presented the documents to plaintiff, and the latter accepted and paid the draft. Later it developed the bill of lading was forged.
The trust company had remitted the money to the defendant, and the latter had paid it to the shipper, before the facts were known. The defendant did not buy the draft, and acted only as the shipper's agent for collection. No express warranty was made by defendant to plaintiff as to the genuineness of the bill, but plaintiff claims there is an implied warranty arising from the facts. The claim by the plaintiff seems contrary to the decision in Springs v. Hanover National Bank ( 209 N.Y. 224). But it is urged that that case is not in point, because there the bill was not indorsed by the defendant, and the decision did not deal with the present statute (Pers. Prop. Law, § 221, as added by Laws of 1911, chap. 248), as it had not then been enacted. The provisions of this section, however, are said to "probably express the existing law apart from statute." (2 Williston Sales [2d ed.], § 432, p. 1071.) The English cases are to the same effect as the Springs case, irrespective of whether the bill is indorsed. ( Robinson v. Reynolds, 2 Q.B. 196; Leather v. Simpson, L.R. 11 Eq. 398; Guaranty Trust Co. of N.Y. v. Hannay Co., L.R. [1918] 2 K.B. 623.) And the indorsement of the bill is immaterial under the statute, for, when it applies, it covers a transfer by "indorsement or delivery." The great weight of authority is in accord with the cases cited (see note, 26 Columbia Law Review, pp. 63-70), though there are two other recent decisions in Oklahoma to the contrary ( Ft. Worth Elevator Co. v. State Guaranty Bank, 93 Okla. 191; 220 P. 340; First National Bank of Heavener v. Kempner, 103 Okla. 237; 229 P. 840).
The statute by its terms does not apply. It states the warranties "on sale of bill" and covers only a transfer of a bill "for value." The defendant did not sell the bill, and got no value for it; that is, it did not transfer it for value, but only as agent of the drawer. It is not liable to the plaintiff. ( Archibald Lewis Co. v. Banque Internationale de Commerce, 216 A.D. 322.)
Judgment for defendant, with costs. Settle findings on notice.