Holub-Dusha Co. v. Germania Bank

Scott, J.:

The action is by a depositor against his bank of deposit to recover the amount paid upon a check on which the name of the payee had been forged. From a judgment for plaintiff the defendant appeals. The determinative facts are not in dispute.

The plaintiff, a New York corporation, kept an ordinary banking account with the First Avenue branch of the defendant, which is a New York State bank, upon which it drew checks from time to time. For some time prior to June 11, 1912, the plaintiff had been endeavoring to purchase a site for a manufacturing plant. . It entered into negotiations with the Queensboro Corporation, a New York corporation, of which Mr. James H. Robinson acted as the representative. Mr. Robinson showed to Paul F. Dusha, the plaintiff’s president, certain lots in Long Island City on the south side of Washington avenue between Academy street and First avenue. These lots had been listed with the Queensboro Corporation by the Stripe-Hodges Company, a firm of real estate brokers composed of Horace G. Stripe and John A. Fookes, who did business under the name of A. H. Hodges. The Stripe-Hodges Company represented to Robinson that they were endeavoring to negotiate a three-corned arrangement by which the owner of the Long Island City lots would exchange them as a part payment for certain New York city property, and that the owner of the New York city property was trying to arrange for the sale of •the Long. Island City lots so as to get some cash out of the transaction if it should be completed.

After some negotiations, in which both Stripe and Hodges participated with Robinson, Stripe finally told Robinson that he thought the Stripe-Hodges Company could sell the Long Island City lots for $16,500 if Robinson would get a $1,000 deposit. Robinson accordingly went to Paul F. Dusha, the plaintiff’s president, and received from him on May 21, 1912, a check dated on that day for the sum of $1,000, drawn by the plaintiff to the order of the Queensboro Corporation, as a payment on account of the purchase' price of the Long Island City lots in question, to be paid over in the event that a contract for these lots should be entered into. On the next day, May 22, 1912, at the request of Stripe, Robinson had this check certified by the defendant bank. Prior to the certification of the check, Robinson had had no conversation with Dusha about certifying it, but Dusha had been informed shortly before the certification by the manager of the defendant bank that the check had been presented for certification, and had replied in the affirmative to the question of the manager as to whether or not the bank should certify it. A short time afterward, in the course of further negotiations, the Stripe-Hodges Company informed Robinson that they were unable to sell the Long Island City lots for $16,500, and finally on June 10, 1912, Stripe telephoned Robinson that he had a contract for the sale of the Long Island City lots to the plaintiff for $11,500. Robinson accordingly went to the office of the Stripe-Hodges Company on June 10, 1912, and there received duplicate contracts between R. W. Birchard, seller, and the Holub-Dusha Company, purchaser, for the sale of these Long Island City lots for the sum of $11,500, and acknowledging receipt of the sum of $1,000 on account of the purchase price on the signing of the contracts.

These duplicate contracts purportéd to be signed “R. W. Birchard,” such signature being witnessed by Hodges. This was the first time that Robinson had been informed that R. W. Birchard was to be the seller. . He had once met a man named Birchard at the Stripe-Hodges Company’s office, but he did not know anything about the Birchard he had then met and did not know that his initials were R. W. He did not know anything about that Birchard and did not know where he was from, but he surmised, after seeing the duplicate contracts, that possibly the seller therein named was the man whom he had met in the Stripe-Hodges Company’s offices, but he did not know that such was" the fact. The duplicate contracts did not state the residence of the seller. Robinson in receiving the contracts relied upon the fact that the signature “R. W: Birchard” was witnessed by Hodges, and thought it was all right. He derived all his information about the seller from the Stripe-Hodges Company. Robinson took the duplicate contracts to Dusha the same day that he received them and left them with him. The next day he again saw Dusha, and the latter, in the name of the plaintiff as its treasurer, signed the contracts in duplicate, asking Robinson if the Stripe-Hodges Company was all right, to which Robinson replied that he thought they were. Dusha then directed Robinson to deliver one of the duplicate contracts to said Stripe-Hodges Company and to have the $1,000 check indorsed by the Queensboro Corporation to R. W. Birchard. Dusha retained one of the duplicate contracts, and Robinson delivered the other with the $1,000 check, indorsed by the Queensboro Corporation to the order of R. W. Birchard, to the Stripe-Hodges Company.

On June 12,1912, the $1,000 check was deposited by the Stripe-Hodges Company in an account opened by them in their own name in the New Netherland Bank of New York. The check when so deposited bore the indorsement “Pay to the order of Stripe-Hodges Co., R. W. Birchard,” followed by the Stripe-Hodges Company’s indorsement. The Stripe-Hodges Company subsequently checked out all of the amount of the check and of*a subsequent deposit of $200, except twenty cents. Of the amount so checked out, the sum of $200 was checked out on June 12, 1912, the sum of $52.50 on June 13, 1912, and all the remainder was checked out subsequent to June 13,1912. On June 13, 1912, the check was presented to the defendant through the Clearing House and paid.

The Stripe-Hodges Company had no authority to sell the Long Island City lots in the name of R. W. Birchard or otherwise. The signatures “R. W. Birchard” on the duplicate contracts were written by J. A. Fookes, otherwise known as A. H. Hodges. The indorsement “R. W. Birchard ” on the $1,000 check was also written by Fookes. Ralphord W. Birchard, the man whom Robinson had met at the office of the Stripe-Hodges Company, had no authority to sell the Long Island City lots, and had no interest in those lots at any time. The plaintiff subsequently learned that its contract for the purchase of these Long Island City lots was no good, and that the contract had been signed by Fookes or Hodges without authority from the real owner of the property. It also learned that Fookes, or Hodges, had indorsed the $1,000 check in the name of “ R. W. Birchard.” It thereafter demanded repayment of the amount of the check from the defendant bank, and, upon the bank’s refusal to repay, instituted this action.

It is obvious that throughout the transaction Robinson acted as agent for the plaintiff, and that the case is to be considered as if every act done by him had been done by the plaintiff itself. Although the payee named on the face of the check was the Queensboro Corporation, the intention of the drawer was that the check should be indorsed to and be payable to the person, whoever he might be, that should execute a contract for the sale of the lots, and Robinson, when he indorsed the check to R. W. Birchard, meant to make the same payable to the person who signed the contract and whose name appeared to be Birchard. The case is to be considered, therefore, as if the check had been drawn in the first instance to the order of R. W. Birchard, the circumstance that it passed first through the hands of the Queensboro Corporation being negligible.

The question which presents itself in actions of this kind is whether or not the bank has paid the check to the person to whom the drawer intended that it should be paid. Mere identity of name, while often important, is not a controlling circumstance, for if there happens to be two persons of the same name, and the drawer meant that the sum represented by the check should be paid to one of them, the bank cannot lawfully pay to the other, and if it does so it must refund to the drawer. (Graves v. American Exchange Bank, 17 N. Y. 205.) This fundamental rule has been applied in many cases, some of which were discussed by this court quite recently in the prevailing and dissenting opinions in Hartford v. Greenwich Bank (157 App. Div. 448).

In the case at bar it is apparent that the check was paid to the very person to whom the drawer intended that it should be paid, that is, to the person who signed the contract for the sale of the lots. The name Birchard meant nothing to Mr. Dusha, who signed the check. It stood to him merely as the name of a person with whom he had made a contract, and he intended that the money should be paid to that person because he had signed the contract. If a man whose real name was R. W. Birchard, but who was not the person who had signed the contract, had obtained possession of the check and indorsed it, and upon the faith of that indorsement the defendant had paid the check, it would have been hable to refund the money to plaintiff, under the rule laid down in the Graves case, above cited, because the person to whom the payment was made, although a veritable

R, W. Birchard, was not the person to whom the drawer intended that payment should be made. On- the other hand, if Hodges, the fraudulent broker who actually signed the contract in the name of Birchard, had adopted his own real name of “Fookes,” had signed the contract and indorsed the check in that name, the transaction would have been completed exactly as it was completed and there would' not have been even the appearance of a forgery. The fact that Hodges adopted for this particular transaction the name of Birchard does not change the complexion of the case. The result of it all was that the check and its proceeds reached the identical person whom the drawer intended that it should reach, to wit, the person who had signed the contract of sale. The fact that Hodges had no authority to sell the lots is not relevant. It is true that Hodges, or Fookes, committed a fraud upon plaintiff in-inducing it to enter into a contract with a person who had no authority to make it. But the defendant was not responsible for that fraud, and the risk that plaintiff might be cheated in this manner was not one which the bank assumed. Its business and duty was to pay the check to the person to whom the drawer intended, when he made it, that it should be paid. If it did that, as I think it clearly did in the present case, it cannot be held liable for the fraud by which the drawer was led to intend that the amount represented by the check should be paid to a person to whom such drawer owed nothing and from whom it received no consideration. The cases relied upon by the respondent are, I think, all distinguishable from the present by reason of the fact that in none of them was the check paid to the person to whom the drawer intended that it should be paid, while here the contrary appears.

■ I advise a reversal of the judgment and,, since the question at issue is one of intention, there should be a new trial, with costs to the appellant to abide the event. ■

Clarke and Dowling, JJ., concurred; Ingraham, P. J., and Hotchkiss, J., dissented.'