Thomas C. Cook, Inc. v. Rowhanian

OPINION ON MOTION FOR REHEARING

By motion for rehearing, Appellant asserts this Court has departed from a liberal construction of the DTPA. He argues our “Opinion tracks the normal business practices of traveler’s checks during normal times to reach the conclusion that this particular Plaintiff was not a consumer ....” That is a correct analysis. We find nothing in the sales advice and have been cited to no case law that says a court should reach a different result when a purchaser buys traveler’s checks on the black market and conceals them from local authorities in order to smuggle additional funds out of his own country. We are not prepared to make some special exception under those circumstances to reach a more liberal interpretation in this case.

*687It is suggested we erred in holding that the “refund service” does not come into play until the check is countersigned by the original purchaser. We reached that result only because that is the device which protects both the issuer and the purchaser of the check. If a purchaser loses checks which have no signature, one who finds them can sign in both places on the checks. If the signatures match, an acceptor or paying agent would have no reason to suspect a forgery. If the checks, as in this case, were signed and countersigned at the time of purchase, they became bearer instruments and subject to negotiation by delivery to a paying agent who would have no reason to suspect a forgery. In either case, the issuer should not bear the loss because the original purchaser has not countersigned the check in the presence of the acceptor or paying agent. Certainly, the sales advice makes those requirements abundantly clear and states that any loss arising from non-observance of this requirement will fall on the holder. When Appellee purchased checks which had both signature and a countersignature and received the sales advice for those checks, he was charged with knowledge that any loss would fall on him as holder.

The motion for rehearing is overruled.