I agree with the majority of the court that plaintiff's petition sets forth a right and cause of action against G.L. Whitaker Son; I differ with them only in regard to the ruling on the exception of no right or cause of action filed by City Café, E.F. Kinberger, and Martin Miranda, members of that firm. The action of Whitaker Son, in withdrawing from the plaintiff bank, under the facts alleged, the right to charge the check in question to their account in the bank, made it necessary for the bank to bring the action it did, against the drawers, payees, and indorsers of the check. In order for the bank to recover against Whitaker Son, it must appear to the court that the indorsement of R.E. Martin, one of the payees and first indorsers of the check, is in fact genuine or was authorized by Martin, expressly or by implication. And if the proof shows that R.E. Martin's indorsement is genuine or was by him authorized, then the judgment of the court will authorize the bank to charge the check to the account of Whitaker Son as prayed for, and such judgment will automatically terminate the suit against the City Café, Kinberger, and Martin Miranda as second indorsers and secondarily liable as such to the plaintiff bank under the law.
But if on the trial of the merits it is found, on the other hand, that the purported indorsement of R.E. Martin was forged and not authorized, then in view of the averments that have served to support a right and cause of action on the part of the bank against Whitaker Son, makers of the check, taken in connection with the law on the subject and giving proper deductive effect to the averments made by the bank against Whitaker Son and City Cafe, etc., as second indorsers and as secondarily liable to the plaintiff for the return of the sum which the City Cafe received from the bank under their indorsements, it seems to me that plaintiff's suit should not be dismissed, as to the City Café, and Kinberger and Martin Miranda members of that firm, on their exception of no right or cause of action. The situation looks to me as if the ruling makes an exception of no right or cause of action serve the purpose of an exception of vagueness, or that the petition, was deficient in certain alternative averments which might have been made, in case the court found on the trial against Whitaker Son that the indorsement of R.E. Martin was forged and not authorized, etc., when no objection has been urged to the absence of alternative averments, etc., and when such averments are really not necessary to the right or cause of action against City Café, etc., but the right and the cause appears as a necessary legal inference and deduction from the legal situation. See Dronette v. Meaux Bros.,156 La. 239, 100 So. 411.
The situation, it seems to me, justifies, and in fact requires, that the exception of no right or cause of action filed by City Café, Kinberger, and Miranda be overruled or referred to the merits, and the judgment appealed from be annulled, avoided, and set aside, and the case remanded to the lower court for answer on the part of those who have not answered, and that the case be tried on the merits as to all the defendants in the form as brought. *Page 76