Opinion
7 Div. 886.
October 31, 1929.
Appeal from Circuit Court, Talladega County; R. B. Carr, Judge.
Merrill Jones, of Anniston, for appellant.
Assumpsit lies in favor of one for whom a check was intended which was misappropriated without reaching him, against the one who cashed it on a forged indorsement and collected it from the drawee, to recover the proceeds so collected. Allen v. Mendelsohn Son, 207 Ala. 527, 93 So. 416, 31 A.L.R. 1063; Merchants Bank v. National Capitol Press, 53 App. D.C. 59, 288 F. 265, 31 A.L.R. 1066; Farmer v. People's Bank, 100 Tenn. 187, 47 S.W. 234.
A banker who pays a check to any one but the payee, or one able to trace his title to the payee through genuine indorsements, does so at his peril. 5 R. C. L. 566; First Nat. Bank v. People's Bank, 18 Ala. App. 190, 91 So. 324.
In pleading estoppel, it must be definitely alleged that the party against whom it is invoked made representations or assumed a position where otherwise inequitable consequences would result to another who, having right to do so under all circumstances, had relied thereon to his prejudice. Houston Nat. Bank v. Eldridge, 17 Ala. App. 235, 84 So. 430; S. A. Williams Co. v. Newman Heller, 205 Ala. 86, 87 So. 807; Pattillo v. Tucker, 216 Ala. 572, 113 So. 1.
Harrison Stringer, of Talladega, for appellee.
Defendant's pleas meet every requirement of the pleading of estoppel. 10 R. C. L. 695; Dispatch Printing Co. v. National Bank of Commerce, 109 Minn. 440, 124 N.W. 240, 50 L.R.A. (N.S.) 74; Columbia M. Co. v. National Bank of Commerce, 52 Minn. 224, 53 N.W. 1061; 12 A.L.R. 113; Persons v. Russell, 212 Ala. 509, 103 So. 543; Tobias v. Josiah Morris Co., 126 Ala. 535, 28 So. 517; Brooks v. Greil Bros., 179 Ala. 459, 60 So. 387.
We consider the case presented by the record. That case will sufficiently appear on reference to the complaint containing common counts and counts in special assumpsit, plea 11, and replication 4. The plea, to state its effect very briefly, is that the defendant bank came into possession of the money sued for, or checks representing that money, by the indorsement of one Gillam, who had received the checks in virtue of his employment by one Miller, who, in turn, represented the East Side Packing Company for the sale of its products in a specified territory. Miller had authority to deposit collections with the Anniston National Bank. Gillam deposited checks received by him from purchasers of East Side Packing Company's products with the Isbell Bank indorsing such checks as follows: "East Side Packing Company," "For deposit, The Isbell National Bank, Gillam Brokerage Company." Gillam was Gillam Brokerage Company. Plaintiff, as assignee of the East Side Packing Company, sues the Isbell Bank to recover money so deposited. Defendant does not deny its continued possession of the money. On the facts appearing in the pleading, the money belongs to plaintiff and no reason appears why plaintiff should not recover. The principle of Allen v. M. Mendelsohn Son, 207 Ala. 527, 93 So. 416, 31 A.L.R. 1063, controls the result. We do not intend to charge the depositor with fraud or forgery. That in this case, as thus far shown by the pleadings, is immaterial. The controlling facts are that the money deposited was the money of plaintiff's assignor, and, for aught appearing, is still in the keeping of defendant. We ought not to state conclusions in a hypothetical case, a case in which the depositor had been allowed to withdraw the fund without actual notice of plaintiff's ownership and of the depositor's alleged lack of authority, but with only such notice, if any, as would be imputed by law to the bank by the facts alleged in plaintiff's replication.
The judgment should be reversed, for the reason that, as against plaintiff or its assignor, defendant has shown no right to retain the money.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and FOSTER, JJ., concur.