CONCURRING OPINION. There is no evidence as to what was the purpose of the construction companies in drawing the three checks upon which Wilson obtained the three drafts from the plaintiff made payable to James Edgar. There is no evidence tending to show that Brown and Wilson were in a conspiracy to defraud their employers. I think that the evidence fairly shows that the purpose of drawing the three checks upon the defendant bank by the construction companies, through their secretary and treasurer, Brown, was to carry out some transaction of the companies'; that Wilson was either to obtain the cash upon *Page 915 these checks for his companies, or drafts made payable to other persons or concerns for the purpose of his companies' making some kind of payments to them. It cannot be inferred from the testimony that it was the intention of the companies, or Brown, that the drafts, if any, that they intended that Wilson should procure from the defendant, should be made payable to James Edgar, or a fictitious person. This is clearly shown by the testimony of Wilson in which he states that the purpose of his having the drafts drawn in favor of James Edgar, a fictitious person, was so that he could deposit them to his own credit in the defendant, bank.
So far as Wilson's fraud is concerned the transaction could have been the same as if he had procured drafts made payable to himself in his own name. No doubt, the reason he did not do this was because he thought, by procuring them made payable to James Edgar, who was an employee of one of the construction companies, that it would make it more confusing and difficult for his employers to trace and discover the fraud.
I do not think that the foregoing facts, as I have related them, are very material to a proper disposition of the case, but I recite them merely to show that the fraud committed by Wilson in each instance was complete when he presented the check of his employers to the plaintiff bank and had it issue a draft to James Edgar, a fictitious person, thus converting the funds to his own use. What Wilson did in each instance after he procured a draft made payable to James Edgar neither added to nor subtracted from the fraud that he had already committed. The case would be no different than if Wilson had procured cash upon these checks from plaintiff or had taken $3,000 in cash out of the till of his employers, and gone to another city and procured the drafts from a bank there in the name of a fictitious payee and, thereafter, indorsed the name of the fictitious payee in order to get the money upon them. If this had been the course pursued by Wilson the fraud would have been consummated at the time he procured the cash from the plaintiff bank or abstracted it from the funds on hand of his employers.
If Wilson, in exchange for the three drafts of plaintiff, had procured a draft payable to John Brown, a fictitious person, from the Produce Exchange for $3,000 or three drafts for $1,000 each, instead of depositing the three drafts in question in the Produce Exchange Bank, and had deposited the new drafts in some other bank in Kansas City, or elsewhere, signing the name of John Brown thereto, and that bank had collected the draft or drafts from the Produce Exchange Bank, it could hardly be contended that the Produce Exchange Bank could have sued that bank on the theory that the indorsement of the fictitious name of Brown by Wilson upon that or those drafts was a forgery.
The suppositions case that I have suggested would be but one *Page 916 degree removed from the transaction at hand and the principles applicable are in no wise different. In other words, when Wilson caused the First National Bank to issue these drafts in the name of a fictitious person in order that he might be able to realize upon the drafts for his own benefit, the fraud was consummated and his indorsement of the fictitious name of the payee upon the drafts was no part of the fraud and was not a forgery on his part.
I am of the opinion that the drafts in question were made payable to bearer under the provisions of section 2638, providing that an instrument is payable to the bearer . . . "(3) when it is payable to the order of a fictitious or nonexisting person and such fact was known to the person making it so payable." The evidence shows that the plaintiff, bank, in drawing the drafts had no intention whatever in reference to the matter as to whom the drafts were made payable. When a customer came to the plaintiff bank and wanted a draft, and paid for it, it was immaterial to the bank, according to the testimony, as to whom the draft was made payable. That was not a matter that it was interested in. It made the draft payable to the person to whom the individual buying the draft requested that it be made payable. In other words, when Wilson requested plaintiff to make these drafts payable to James Edgar, a fictitious person, the bank had no intention whatever in the matter, but was merely carrying out the directions of Wilson for whom it was acting as agent in the matter. Therefore, when plaintiff made the drafts payable to James Edgar, a fictitious person, its act was Wilson's act. It was the intention of Wilson that the drafts be made payable to a fictitious or nonexisting person and, therefore, of course, he knew that they were being made to such a person.
I think the judgment should be affirmed.