The appellant sued the appellee for one hundred sixteen dollars and sixty-four cents, the amount of a cashier's check, issued by the bank at the request of the plaintiff for said amount, payable to Mrs. Ida Crenshaw. The *Page 431 facts with reference to the transaction were substantially as follows: In the early part of 1924 the plaintiff was approached by a negro who gave his name as George Walls, with a note of recommendation signed by Mrs. Ida Crenshaw, telling the plaintiff that Mrs. Crenshaw owned a place near Miller, De Soto county, Miss., and that George Walls had been living with her for eleven years as a tenant on her place, had made a splendid tenant, and that said negro owned a number of mules and horses, cows, wagons, buggies, etc., and that said negro owed her one hundred sixteen dollars, which if paid, she would release him; whereupon the plaintiff made a trade with the negro and went to the bank to purchase a cashier's check, giving therefor his personal check, which was marked "Paid," whereupon the cashier issued a check payable to Mrs. Ida Crenshaw for said amount, turning it over to the plaintiff, who turned it over to the negro to deliver to Mrs. Crenshaw. In the course of business, the cashier's check was returned with an indorsement by Mrs. Ida Crenshaw, or the name of Mrs. Ida Crenshaw was indorsed thereon and that of another person, and then indorsed by a bank in Memphis, Tenn., which bank guaranteed all prior indorsements. This check was paid by the bank, but the bank was not acquainted with the signature of Mrs. Ida Crenshaw. The trade made between the negro and the plaintiff was that the negro was to move on plaintiff's place the following Wednesday after the trade was made, but the negro failed to show up, and inquiry failed to find either him or Mrs. Crenshaw at or near Miller, Miss.
The check was deposited in the Memphis bank by the 638 Fire Vulcanizing Company. The deposition of the manager of this company was taken, but he seemed to have no clear or definite recollection as to who delivered the check to him. He testified that the check was taken in the course of business and for value. There was no testimony that the signature indorsed on the check was not the actual signature of Mrs. Ida Crenshaw, nor was it shown that no such person was in existence. *Page 432
The cashier of the Bank of Sledge testified that, when the plaintiff came to get the cashier's check, the cashier asked him why he did not give his own check; that, if he gave a cashier's check it could not be held back or countermanded, but, if he gave his own personal check, it could be held up or countermanded. The cashier testified that the plaintiff said he was not uneasy or that he would risk it. The Memphis bank offered to refund the amount of the check if the plaintiff would make affidavit that the indorsement of Mrs. Ida Crenshaw was a forgery, but the plaintiff declined to make such affidavit.
It is the contention of the appellant that the burden was upon the bank to show that the indorsement was genuine, and that it appeared that the fraud practiced upon the plaintiff by the negro in obtaining the check was sufficient to show that the check was fraudulently obtained, and that the bank should know the signature to be genuine.
We are of the opinion that the burden was upon the plaintiff to prove that the signature of the name of Mrs. Ida Crenshaw was a forgery, and that the burden was not met, and therefore the judgment must be affirmed.
Affirmed.