Sherman v. Corn Exchange Bank (91 A.D. 84, 1904)

McLaughlin, J. :

This action was brought to recover a sum of money alleged to have been deposited by the plaintiff in the. defendant bank. The defendant pleaded payment, and at the trial, to sustain its plea, produced a check for the amount sought to be recovered, which was conceded to have been drawn upon it by the plaintiff.

The real issue tried was whether the indorsement of the name of the payee was genuine, and as bearing upon this issue it appeared that the plaintiff, by reason of an advertisement in one of the New York newspapers, announcing that certain horses and carriages were for sale at a livery stable, called at such place and saw one Strong, who represented that he was the coachman of J. L. Baldwin, the owner of the horses; that Mr. Baldwin was a wealthy gentleman,, connected in business with the Baldwin Locomotive Works in Paterson, N. J., and was then at Aiken, S. C.; that the horses had, been driven by Mr. Baldwin’s family during the preceding summer-at Newport. After some negotiations the plaintiff purchased the.horses, and in payment gave to Strong the check in question, which-was made payable to the order of J. L. Baldwin. The horses not proving satisfactory, the plaintiff sought to stop payment of the check, but before he gave the defendant notice it appeared that the same had been presented to the bank by one Miller and paid by crediting the same to h’is account. At the time it was paid it bore what purported to be the indorsement of J. L. Baldwin, as well as the indorsement of Miller. Strong testified that a man calling himself J. L. Baldwin delivered the horses to him to sell, and that after he made the sale he delivered the check which he received in payment from the plaintiff to such person; that he saw such person indorse the name J. L. Baldwin upon the back of the check and then deliver it to Miller, and as to the indorsement and delivery he was corroborated by Miller. He admitted that he had never been a coachman for Baldwin, and a fair consideration of his evidence, I think, would justify a finding that his representations to the plaintiff as to who was the owner of the horses was a pure fabrication, made for the purposé of inducing the sale. But even if this be assumed it does not aid the plaintiff, because the referee has found, and the evidence sustains the finding, that the check was given in payment of the horses purchased from J. L. Baldwin and that J. L. Baldwin indorsed the check and delivered it to Miller. The fact that the J. L. Baldwin to whom the check was made payable was not the J. L. Baldwin whom the plaintiff had in mind is of no importance. He gave his check in payment of the purchase price of the Worses, and he intended to make it payable to the owner. This he did and the owner indorsed it. (First National Bank v. American Exchange Nat. Bank, 170 N. Y. 88; Robertson v. Coleman, 141 Mass. 231; National Bank v. Shotwell, 35 Kan. 360 ; Land Title & Trust Co. v. Northwestern Nat. Bank, 196 Penn. St. 230; 50 L. R. A. 75 and note.)

In First National Bank v. American Exchange Nat. Bank (supra) a man who falsely represented himself to be A. W. Hudson; the husband of Olive K. Hudson, made application for a loan upon property owned by Olive K. Hudson, and a trust deed as collateral ■security for the loan was prepared and sent to him at an address given by him. Shortly thereafter a bank in the city where the property was located received a note purporting to be signed by A.W. Hudson and Olive K. Hudson, and a trust deed signed by Olive 3L Hudson, together with a letter signed A. W.-Hudson, requesting 'it to collect the loan and remit the proceeds to A. W. Hudson. 'The mortgagee paid the amount of the loan to the bank, which -remitted a draft on another bank for the proceeds as directed in the Setter purporting to be signed by A. W. Hudson. It -was held that ^although the signatures to the note and trust deed proved to be iorgeries the draft was enforcible in the hands of a person who, iii good faith and for value, purchased it from the person purporting to ’ be A. W. Hudson, the person to whom it was sent, and for whom at was intended.

In Robertson v. Coleman (supra) a person went to a hotel in the Pity of Boston and registered under the name of Charles Barney-. Shortly thereafter he took a horse and carriage, of which he represented himself to be the owner, to certain auctioneers in that city, •and requested them. to sell for him. He gave them his name as Oharles Barney, and the auctioneers, believing him to be the person