Opinion
Argued January 13, 1890
Decided February 25, 1890
Chas. A. Da Costa for appellant.
Edgar Bergen for respondent.
The case, as represented by the evidence, was at the trial treated by the counsel for the parties as presenting a question of law only. The request for direction of a verdict for the defendant was refused, and the court directed a verdict for the plaintiff, and exceptions were taken. So that if, in any view which may be taken of it, the evidence is sufficient to support the verdict, the recovery must be sustained. ( Dillon v. Cockcroft, 90 N.Y. 649.)
In the presentation of the check to the plaintiff for payment, and in paying it, the parties acted in good faith and upon the assumption that it was in all respects genuine. The drawer of it was one of the plaintiff's depositors, and had been such for considerable time. The signature to the check was his, signed to one drawn by him, and which had been raised in amount from six to six hundred and sixty dollars, and the name of another payee inserted in it. This fraudulent alteration was not discovered until nearly three months after the time the payment was made. In the meantime the money had been paid over to the person who had placed it with the N.Y. B.D. Express Co. for collection.
The payment was made by the plaintiff upon a mistake of fact as to the character of the check; and money paid under such circumstances may be recovered back from the party to whom payment is made. If the Wescott Express Company had been or had assumed to be the apparent owner of the check when it was presented to and paid by the plaintiff, the defendant would have been liable to reimburse the plaintiff. ( Canal Bank v. Bank of Albany, 1 Hill, 287; Bank of Commerce v. Union Bank, 3 N.Y. 230; Corn Exchange Bank v. Nassau Bank, 91 id. 74.) But in the present case the check was in fact sent to the defendant company for collection, of which the plaintiff was advised by the indorsement upon it to that effect made by the N.Y. B.D. Express Co. The defendant, therefore, apparently and in fact represented that company, and in the relation of such agency received the money from the plaintiff. ( Montgomery Co. Bank v. Albany City Bank, 7 N.Y. 459.) And prior to the time of the discovery of the fraudulent character of the check, having handed the money over to the company from which it was so received for collection, the defendant was not liable to the plaintiff as for money paid by mistake. ( National Park Bank v. Seaboard Bank, 114 N.Y. 28. ) It is, however, contended that the defendant was indorser of the check, and became chargeable as such. And to establish the fact that the defendant did indorse it, reference is made to the pleadings. The complaint alleged that the "check so altered, changed and raised and properly indorsed was presented on or about the 19th day of November, 1884, by George W. Dixon, as agent of said Wescott Express Company." And the defendant, by the answer, "admits the allegations that the check referred to in said complaint, properly indorsed, was presented to said plaintiff for payment on or about the 19th day of November, 1884, by George W. Dixon, as agent of the said Wescott Express Company." This admission, in its import, is no broader than those allegations of the complaint, and they do not charge that the company indorsed the check, and they are entitled to such construction only, in favor of the plaintiff, as the language used fairly requires. ( Slocum v. Clark, 2 Hill, 475; Clark v. Dillon, 97 N.Y. 370.) That the check, properly indorsed, was presented to the plaintiff by Dixon, as the agent of the defendant company, does not necessarily furnish the inference of indorsement by the company.
But it is urged that inasmuch as Dixon was the agent of the company, and presented the check as such for payment, his indorsement must or may be that of his principal.
He indorsed his name upon it without anything to indicate that he made it other than individually. It may be that if he had added the word agent to his name, it may have been properly shown to have been done by him as such agent, and the indorsement treated as that of his company upon evidence being given of his authority to make it. ( Hicks v. Hinde, 9 Barb. 528; Babcock v. Beman, 11 N.Y. 200; Bank of Genesee v. Patchin Bank, 19 id. 312.)
Nothing appears in any manner upon the paper characterizing the indorsement of Dixon as made in a representative capacity or his purpose to so make it, and it would be unduly extending the rule to charge another party in such case as indorser of commercial paper. ( Mills v. Hunt, 20 Wend. 431; Booth v. Bierce, 40 Barb. 114, 136; Briggs v. Partridge, 64 N.Y. 363. ) This view has relation only to the situation produced by the act of making such an indorsement, and without any reference to the effect of an adoption of the act by the principal as against the latter.
The indorsement by the New York and Boston Despatch Express Co. appearing by its terms to have been made for the purpose of the collection of the check, the defendant assumed the relation of agency in receiving it and obtaining the money and transmitting it to such indorser.
The restrictive indorsement denied to the defendant the apparent title, and rendered the check non-negotiable, of which the plaintiff was advised by the restriction appearing by the terms of the indorsement. The defendant company took no title to it, and could transfer none. The right of the defendant as the correspondent or agent of the other company, was to present the check to the plaintiff and receive the money. This was the import of the indorsement of that company. ( Sigourney v. Lloyd, 8 Barn. C. 622; Hook v. Pratt, 78 N.Y. 371; White v. National Bank, 102 U.S. 658.) There was, therefore, no implied authority in Dixon as the agent of the defendant company, to represent it in the transaction beyond what was requisite to the performance of the agency assumed by it, or was legitimately within its purpose. This imposed upon the defendant neither the duty to indorse the check or to guarantee its genuineness. Nor does it appear that Dixon as such agent had any special authority to do either, or any authority in that respect other than such as arose from his relation of agency. A different case would have been presented if the defendant company, through its agent, had received the money in its own right, or apparently so, from the plaintiff. Then with or without indorsement, the defendant may have been treated as warranting the genuineness of the check and as liable to the latter for the amount. ( White v. Continental Nat. Bank, 64 N.Y. 316, 320; Susquehanna Valley Bank v. Loomis, 85 N.Y. 207, 211.)
The cases cited by the plaintiff's counsel, and upon which he relies to support in this repect the recovery, were those in which the implication was permitted that the party presenting paper and receiving payment was the lawful holder having title. The doctrine of guaranty and liability in such case is firmly settled, but for the reasons before suggested it is not applicable to the present case.
No other question seems to require consideration.
The judgment should be reversed and a new trial granted, costs to abide the event.
All concur.
Judgment reversed.