In original brief, appellant's counsel, with very little emphasis, pointed out a statement the trial court made when he rendered judgment in favor of appellee. We examined the statement, but concluded that it found its way into the record on account of the alertness of the court reporter, and that it was not intended to be taken as including all of the reasons in the mind of the court why judgment should be thus rendered.
In order to present the matter fully, we quote here the entire colloquy:
"Court: The Court finds from the evidence that the Alabama Dry Dock and Shipbuilding Company has in its possession $917.76 which in equity and good conscience belongs to the Plaintiff and the Court gives judgment therefor. The Court thinks the evidence clearly shows the above amount to have been taken from the Plaintiff's account in the Merchants National Bank of Mobile and deposited to the credit of the Alabama Dry Dock and Shipbuilding Company, and there is no claim or counter-claim of recoupment or set off by the Alabama Dry Dock and Shipbuilding Company, though the evidence shows the Alabama Dry Dock and Shipbuilding Company to be possessed of this sum of $917.76, which in equity and good conscience belongs to the Plaintiff.
"Mr. Smith: I ask that the Court make a ruling on whether or not these checks are forgeries.
"Court: The Court has already announced judgment for the Plaintiff, then the attorney for the Defendant has asked for a special finding of fact after judgment has been pronounced.
"Mr. Smith: I know Your Honor's mind was made up against me from the beginning. I did and do ask Your Honor for a special finding of fact, upon which the Court bases his opinion.
"Court: I have stated that each one of these checks aggregating $917.76 were taken from the Plaintiff's account and placed to the Defendant's account and the evidence further shows that this amount of money is now in the hands of defendant.
"Mr. Smith: But Your Honor has not considered the finding of fact on the question of forgeries.
"Court: The Court has had a great many things in mind during these two days trial, and cannot remember every single mental process he went through, to arrive at his decision, but will state that in arriving at the judgment for the Plaintiff, the Court is of the opinion that it is immaterial as to the origin of the checks offered in evidence, whether forged or not, to evidence the amount of money that was taken from Plaintiff's account and credited to Defendant's account. In an action for money had and received, the Plaintiff makes out his case in making that proof, and there is no special plea of counter-claim or off set, but the defendant has only pleaded that it does not have the money. Therefore, the Court holds that Defendant does have the money and so finds."
In brief on application for rehearing we are again urged to consider this incident in the record and give particular attention to its purport. We are, of course, glad to do this and regret that the matter did not receive our more studious consideration heretofore.
We now entertain the view that this declaration of the trial judge indicates the basis for his conclusions, and we are without *Page 542 authority or right to ignore the significance of the assertion.
It is evident that the court below, as to one phase of the case, did not consider it material as to whether or not the endorsements on the checks in question were forgeries. In this it is clear that he took an erroneous view of the law as applied to the factual issues in the case.
In our original opinion we failed to give proper consideration to this asserted misapplication of the law and indulged all the permissible presumptions in favor of the court as a trier of the facts without a jury. In this respect we were in error. Murphree v. Hanson et al., 197 Ala. 246,72 So. 437; Fiquett v. Wade Electric Light Power Co., 206 Ala. 630,91 So. 357; Cox v. Somerville et al., 204 Ala. 261,85 So. 525.
As indicated in the original opinion, the appellee's position rested on the factual premise that impostors fraudulently obtained the checks in question by representing themselves to be the payees and these same persons endorsed the names of the payees on the checks and induced the plaintiff to cash them. If the plaintiff below could have succeeded in making satisfactory proof of these facts, the court would have been authorized to find that there was not in effect legal forgery of the endorsements. This in recognition of the authoritative theory that a maker of a check intends that the person to whom he delivers the check has the right to convert it into cash.
In the preparation of our original opinion, we labored under a misapprehension of our task and concluded that there were reasonable inferences to be drawn from the evidence capable of supporting a finding by the trial judge that the endorsements were not legal forgeries. We accorded to his finding the force and effect of the verdict of a jury on the same evidence.
We come now, in the light of our belated views, to consider the judgment of the primary court without the application of the rule stated just above.
We have reread the record in this case and have again given attentive consideration to briefs of able counsel. We are forced to the conclusion that the reasonable inferences to be drawn from the evidence are not sufficiently strong and convincing to warrant our finding that the endorsements on the checks in question were not legal forgeries.
We have no difficulty in arriving at the conclusion that the endorsements were, in fact, forgeries. This is made clearly evident by an examination of the genuine signatures on checks tendered in evidence for comparison. We are aided also by the testimony of a handwriting expert, who testified that in his opinion the endorsements on the questioned checks are not the genuine signatures of the payees.
The evidence is silent with reference to the circumstances incident to the method or manner used in issuing and cashing any of the particular checks which form the basis for this suit, unless it can be said that they were handled in the way generally employed. However, there is testimony that plaintiff's assistants did not in every case follow this accustomed procedure. We think the whole evidence will bear a fair inference that these deviations from the prescribed rule occurred in exceptional cases. Nevertheless, we cannot escape the conviction that the evidence touching the instant inquiry does not exclude all other conditions and circumstances which could afford opportunity to make the endorsements legal forgeries.
We are here dealing with the theory of causation, and we have more than one plausible or ostensible explanation as to how the main event occurred or what occasioned it. The evidence points with logical sequence to more than one cause. We are faced with the task of making a selective application of one of them. It would be mere conjecture and surmise to hold one in higher estimate than another.
We do not feel that we should base a judgment on evidence so uncertain.
The conclusions we have reached make it unnecessary for us to further extend this opinion.
It is ordered that the application for rehearing be and the same is hereby granted; *Page 543 and it is further ordered that the judgment of affirmance be set aside, the judgment of the lower court be reversed and the cause remanded.
Application for rehearing granted.
Reversed and remanded.