November Term, 1847
B.D. Noxon and J. Van Buren, (Atty. Genl.) for plaintiff in error.
J.A. Spencer, for defendants in error.
In an action against the drawee of a bill, it is not enough for the holder to prove that it has been accepted, without also establishing his title to the bill. And if the acceptor, under a mistake as to the fact of ownership, has paid the bill to one who had no title, the money may be recovered back, although it was paid to a bona fide holder. ( Canal Bank vs. Bank of Albany, 1 Hill 287.) The plaintiff relies upon this case as not being distinguishable from he own; but he is under a great mistake. It is not expressly stated in the report of that case, that Bentley, the payee named in the draft, was the owner of it; nor was it necessary that the fact should be stated, for where nothing appears to the contrary, the payee must be taken to be the owner. It may, however, be proper to mention, that it did expressly appear that Bentley was the owner of the draft. My recollection on the subject has been confirmed by inquiries made since the argument. In the case now before us, the fact is fully established, that Billings, the payee named in the bill, never was the owner of it; nor was it drawn with the intent that he should either endorse it, or have any interest in, or concern with it. In the one case, the payee owned the bill, and could have maintained actions upon it, both against the acceptors and the drawers; while in the other, the payee has no interest in the bill, and cannot maintain an action upon it, for his own benefit, against any one. In the one case, payment to the holder of the bill would be no protection against an action by the payee, because he was the true owner; while in the other, the payee, having no title, could in no event have a legal claim to the money. The distinction between the two cases, is very material and is quite too obvious to be mistaken by any one.
Although the payee, Billings, had no interest in the bill, the question still remains whether the Bank of Central New York, in whose place the defendants stand, acquired a good title to it. We think they did. Shapley and Billings drew the bill, and passed it to the bank, with the name of the payee endorsed upon it. By that act they plainly affirmed that the endorsement was genuine, so that the bill might be negotiated by delivery. By means of this representation they induced the bank to discount the bill; and if the bank had brought an action upon it against them, counting in the usual form, as upon a bill payable to Truman Billings, and endorsed by him, the drawers would, upon the plainest principles for maintaining honesty and fair dealing, have been estopped from controverting the genuineness of the endorsement. If an authority is needed in support of this doctrine, Meacher vs. Fort (3 Hill So. Car. 227, and Riley's Law Cas. 248,) is a case directly in point.
There is another form of declaring in which the bank might have recovered on the bill. As the payee had no interest, and it was not intended that he should ever become a party to the transaction, he may be regarded, in relation to this matter, as a nonentity; and it is fully settled that when a man draws and puts into circulation a bill which is payable to a fictitious person, the holder may declare and recover upon it as a bill payable to bearer. ( Vere vs. Lewis, 3 T.R. 182; Minet vs. Gibson, id. 481, and 1 H. Black, 569, S.C. in the House of Lords; Collins vs. Emett, 1 H. Black, 313; Plets vs. Johnson, 3 Hill 112.) In legal effect, though not in form, the bill is payable to bearer; and it is always good pleading to state the legal effect of the contract. It is said in some of the cases, ( and see Bennett vs. Farnell, 1 Camp. 130, and 180, b. note,) that when the action is against the acceptor of such a bill, it must appear, that he knew the payee was a fictitious person. But I can see no sufficient reason for laying down such a rule. It is enough that the holder has a a good title to the bill, so that the acceptor on paying it, can properly charge the amount against the funds of the drawer in his hands, if there be any; and if there be none, that he may have an action against the drawer for money paid to his use. As the acceptor can never resort to the payee or endorser, he has no interest in knowing through whose hands the bill has passed, except for the purpose of ascertaining that the holder has a good title.
It may be well enough, by way of discouraging such transactions, to hold, that one who discounts a bill for the benefit of the drawer, with knowledge of the fact that the payee is a fictitious person, cannot recover against the acceptor. ( Hunter vs. Jefferey, Peake. Add. Cas., 146.) But that doctrine has nothing to do with this case; for the bank had no knowledge or suspicion at the time the bill was discounted, that the name of the payee had been forged.
The point has been adjudged, that when the maker of a promissory note puts it into circulation, with a forged endorsement of the name of the payee upon it, a bona fide holder may sue and recover against the maker as upon a note payable to bearer; ( Fort vs. Meacher, Supra.) and the same rule has been applied where the payee had no interest in the note, and it was not intended that he should become a party to the transaction. ( Foster vs. Shattuck, 2 N. Hamp. 446.) Notwithstanding what was said in Dana vs. Underwood, (19 Pick. 99.) I think this sound doctrine; and it is applicable to the case, of a bill put into circulation by the drawer with a forged endorsement upon it. A bona fide holder may treat it as a bill payable to bearer.
The bank had a good title to the bill as against the drawers, and the payee; and that was a good title against all the world. No one is injured by this doctrine. The bill has answered the end for which it was drawn. The plaintiff has paid money for the drawers in pursuance of their request; and he has the same remedy against them that he would have had if the endorsement had been genuine.
I have spoken of the drawing and negotiating the bill as the act of both of the partners, although only one of them was present at the time, because such was the legal effect of the transaction. It is said that Charles S. Billings was not the agent of his partner Shapley for the purpose of committing a forgery; and that is very true; but his right to draw and negotiate bills in the name of the firm has not been questioned; and that is all that is material to the present inquiry. Is it not important to know who put the name of Truman Billings as endorser upon the bill. It is enough that Truman Billings was not the owner of the bill, and that it was passed to the bank with his name upon it.
As the bank discounted the bill for the firm of Shapley and Billings, it is of no importance that Billings applied the money to his own private use, instead of carrying it into the affairs of the partnership. And in relation to the estoppel, it is quite clear that the declarations and acts of one of the partners, made and done while transacting the partnership business, and relating to it, are equally conclusive upon both of them. We have not been referred to any book which holds a different doctrine.
The plaintiff probably accepted and paid the bill under the mistaken assumption that the endorsement was genuine. But he was not mistaken about the main fact which he was concerned to know, which was, that the holder was the owner of the bill. Having paid the money to the proper person, the plaintiff has all the rights against the drawers which he would have had if the endorsement had been made by Truman Billings; and there is no principle upon which this action can be maintained.