Opinion
33114.
DECIDED JULY 7, 1950. REHEARING DENIED JULY 20, 1950.
Action to recover proceeds of check; from Lumpkin Superior Court — Judge Edmondson. April 15, 1950. (Application to the Supreme Court for certiorari.)
Smith Stephens, for plaintiff.
J. F. Pruitt, E. C. Brannon, for defendant.
Under the facts of this case the evidence failed to show that the North Carolina bank cashed the check on a forged indorsement, as the evidence shows without dispute that there was no deception or misrepresentation as to the identity of the person who indorsed the check. It follows that the drawee bank, which paid the check and charged it to the drawer's account, was not liable to the depositor for paying the check on a forged indorsement.
DECIDED JULY 7, 1950. REHEARING DENIED JULY 20, 1950.
Henry W. Moore sued the Bank of Dahlonega to recover the amount of a check drawn by the plaintiff on the bank and allegedly paid by the bank on a forged indorsement. The case was tried by the judge on an agreed statement of facts. The judge found for the defendant and the plaintiff excepted. The substance of the petition can be seen from the agreed facts, which are substantially as follows: Henry W. Moore resides in and operates a store in Dahlonega, Georgia, selling hardware and other items and he is and was on April 15, 1947 a regular customer and depositor in the Bank of Dahlonega. The Bank of Dahlonega is a banking corporation, organized under the laws of the State of Georgia, with its principal office and place of business in Dahlonega, Lumpkin County, Georgia, and doing a general banking business, including the receipt of demand deposits and maintenance of checking accounts for its customers and members of the general public, and was so engaged on April 15, 1947. On or about April 15, 1947, Henry W. Moore received in the United States mail a price list of merchandise, same being headed, in pertinent part, as follows: "Announcing the opening of our Asheville, North Carolina warehouse. Mail order to Gilbert Wholesale Hardware Co., P. O. Box 341, Asheville, North Carolina, Ship to ____, Address ____, Town ____, State ____. Guarantee: We guarantee the quality of every article we sell to be the best your money can buy. If for any reason you are not completely satisfied with anything you buy from us, you may return same to us any time within 10 days, for exchange, for replacement, or for refund of your money in full. Satisfaction guaranteed. All prices are F.O.B. Asheville, North Carolina. Delivery charges must be paid by customer upon receipt of merchandise. Terms: 1/3 deposit with order, balance C.O.D., F.O.B. Asheville, North Carolina. Note: Special 10% discount this week on opening orders and we ship prepaid Railway Express to you when you send your check in full. We can ship on open account to rated concerns soon — all first orders C.O.D. We ship within 3 days. No back orders. Satisfaction guaranteed. We ship any quantity — from 1 to 1,000." The above mentioned price list was addressed to "Hardware Store, Dahlonega, Georgia." Upon receiving the price list, Henry W. Moore prepared an order for merchandise and prepared and signed a check on his printed check form, drawn on the Bank of Dahlonega, dated April 15, 1947, and being as follows: Henry W. Moore, Hardware and Electrical Equipment, Dahlonega, Ga., April 15, 1947, No. 665, Pay To The Order of Gilbert Wholesale Hardware Co., $465.01, The sum of $465 and 01 cts Dollars, To Bank of Dahlonega, Dahlonega, Ga., 64-581, Henry W. Moore (Printed) Henry W. Moore (Signed). The following appears on the back or reverse side of the check: "Gilbert Wholesale Hardware Co. by Joe W. Gilbert" and "Pay and Bank or Trust Co. or order, All prior indorsements guaranteed. April 16 47 1008, April 16 47 2008, Wachovia Bank and Trust Company" (Perforation through check Paid). 4-21-47, 64-581. The above check and order blank were placed in an envelope addressed to "Gilbert Wholesale Hardware Co., P. O. Box 341, Asheville, North Carolina," the entries were placed on the back of the check after being mailed by Henry W. Moore. The check was paid by Wachovia Bank and Trust Company on April 16, 1947, and, with the indorsement appearing above, transmitted to the Bank of Dahlonega and paid by it on April 21, 1947. On or about April 15, 1947, a man introduced himself to Frank H. Keener, the cashier of the Wachovia Bank and Trust Company and gave his name as Joe W. Gilbert. He made a deposit at that time of a number of checks drawn on banks in various towns and cities in the Southern states and some money orders. The account was opened in the name "Gilbert Wholesale Hardware Company, P. O. Box 341, Asheville, North Carolina," and the man who made the deposits of the checks and money orders completed and left a signature comparison card, with the name "Joe W. Gilbert" appearing thereon. At various times between April 15, 1947 and April 17, 1947, the same person made deposits of checks and money orders. Five withdrawal checks were charged against this account totaling $929.50 and two of these were cashed over the counter for and paid to the person represented to be Joe W. Gilbert, the identical person who opened the account. These two checks were cashed for him April 16, and April 17 for $100 and $200 respectively. These five checks did not exceed money orders already paid by the post office and checks which had been paid by drawee banks and remitted to Wachovia Bank and Trust Company. The check of Henry W. Moore, dated April 15, 1947, and described above was deposited in the Wachovia Bank and Trust Company by the identical person who opened the account in the name of Gilbert Wholesale Hardware Company and who had given his name as Joe W. Gilbert, on April 16, 1947, and the indorsement appearing on the back of the check, as shown above, was placed thereon on that date and was the same handwriting that appeared on the comparison signature card left with the bank when the account was opened. On April 18, 1947, the check was handled in regular and due course of business by mailing direct to the Bank of Dahlonega, Dahlonega, Georgia. It was paid by the Bank of Dahlonega on April 21, 1947 and remittance mailed by them on that date to the Wachovia Bank and Trust Company. No person or firm having a name similar to Gilbert Wholesale Hardware Company or Joe W. Gilbert had an account with the Wachovia Bank Trust Company. The above check was returned to Henry W. Moore with his monthly bank statements on May 1, 1947. No claim was made that the bank erroneously paid the check until July 9, 1947. On May 6, 1947 he having not received the goods he had ordered, Henry W. Moore dispatched a telegram addressed to Gilbert Wholesale Hardware Company, Box 341, Asheville, North Carolina, inquiring when he might receive his order. On the same day, he wrote a letter addressed the same, referring to the telegram and stating: "As your circular stated that shipment would be made within three days, we have been wondering when we would be able to receive same, or when shipment would be made, as we are badly in need of the articles ordered. Please advise just when shipment will be made or if already shipped, please trace for final delivery." On May 9, 1947, and again on June 6, 1947, Henry W. Moore sent telegrams addressed to Gilbert Wholesale Hardware Company inquiring about the order but received no reply. On July 8, 1947, he was notified by the Western Union Telegraph Company that his telegram was undelivered because it was returned by the post office unclaimed, after which he telephoned the Chief of Police at Asheville and was told that there was no firm as Gilbert Wholesale Hardware Company and that the man who had given his name as Joe W. Gilbert and his wife were being sought by the F.B.I. Henry W. Moore never received any goods or merchandise pursuant to the order or check. The true name of the person who represented himself to the Wachovia Bank and Trust Company as being Joe W. Gilbert is T. W. McPeak but he also on occasions used the names of Joe W. Gilbert and Jimmy Day. His wife, Mrs. T. W. McPeak, also on occasions, used the names Elizabeth Day and Elizabeth Gilbert. No firm or persons ever procured any business license, rented any building or procured any telephone listing in Asheville during the year 1947 in the name Gilbert Wholesale Hardware Company. Mr. and Mrs. T. W. McPeak, under the name Mr. and Mrs. Joe W. Gilbert, rented a room at the Langren Hotel, Asheville, North Carolina, and there prepared for mailing the price lists described above. They rented a post office box, same being number 341. They never had a stock of goods or hardware, or store or warehouse. T. W. McPeak went from Asheville, North Carolina, to California and upon being located there was arrested and returned to Asheville, North Carolina. A criminal information against him and his wife, charging them with using the mail to defraud (Sec. 338, Title 18, U.S.C.) was filed in the U.S. District Court for the Western District of North Carolina on July 17, 1947, in case No. 405 (United States of America v. T. W. McPeak; alias Joe W. Gilbert, alias Jimmy Day, et al, etc.) and after waiving indictment and pleading guilty, T. W. McPeak was sentenced by the court to imprisonment. The transaction with Henry W. Moore set forth above is one of the overt acts set forth in said criminal proceedings. The money deposited and remaining in the Wachovia Bank and Trust Company at the time said criminal proceedings were instituted was impounded by the court and the court ordered it distributed among various persons who had ordered merchandise from Gilbert Wholesale Hardware Company and whose checks had cleared and who had suffered loss thereby. A check for $194.46, dated July 27, 1948, was mailed to Henry W. Moore, as representing his proportionate share of said fund. This check has never been accepted by Henry W. Moore, but it is stipulated he may use said check and the fund derived therefrom without prejudice to the within proceeding between the parties hereto; except that any amount he accepts from said fund shall be deducted from the amount he claims against the Bank of Dahlonega and his claim against the bank reduced accordingly.
The court properly found for the defendant. The finding, however, could not be based on Code § 13-2044, because the section does not include forgeries of indorsements. First National Bank of Atlanta v. American Surety Co., 71 Ga. App. 112 ( 30 S.E.2d 402); Insurance Company of North America v. Fourth National Bank of Atlanta, 12 Fed. (2d) 100. The instrument was not payable to bearer under Code § 14-209 because the drawer believed that the payee was a real and not a fictitious entity. Plaintiff in error cites 7 Am. Jur. 840, § 96 and makes the following statement: "The duty of the drawee bank in such an instance would be no different from its duty when a check is drawn to an existing person intended to receive the instrument or its proceeds." We agree with this statement and in this view it remains only to determine whether T. W. McPeak forged the indorsement by the indorsement "Gilbert Wholesale Hardware Co. by Joe W. Gilbert" instead of "by T. W. McPeak." The evidence shows that McPeak had established an account at the Wachovia Bank and Trust Company, P. O. Box 341, Asheville, North Carolina" and that the man who made the deposits of checks and money orders completed and left a signature comparison card with the name "Joe W. Gilbert" appearing thereon. The petition alleges that McPeak signed the indorsement as Joe W. Gilbert. McPeak had a perfect right as between him and the North Carolina bank to use a trade name and an assumed name so long as he dealt in good faith with it. If McPeak had deposited the check as he did and had established an account which he could withdraw by indorsing the trade name, by "T. W. McPeak," there would be no contention here that the indorsement was forged. So it is immaterial by what name the indorsement was drawn so long as there was no concealment from the bank, and no misrepresentation, as to the identity of the person indorsing the instrument. McPeak could have used any name he wished so long as the North Carolina Bank knew it was dealing with the same person in whose name the account was opened. "Whether a name is the real one of the individual using it or is a fictitious or assumed one is ordinarily a question of fact. Without abandoning his real name, a person may, in the absence of statutory prohibition, adopt any name, style, or signature, wholly different from his own name, by which he may transact business, execute contracts, issue negotiable paper, and sue or be sued, unless he does so in order to defraud others through mistake of identity, it being the identity of the individual that is regarded, and not the name that he may bear or assume." 45 C. J. § 12, p. 376. . . "The essential element of forgery consists in the intent, when making the signature, or procuring it to be made, to pass it off fraudulently as the signature of another party than the one who actually makes it." Commonwealth v. Costello, 120 Mass. 370. "If this intent thus to personate another exists, the instrument is still a forgery, even if the name affixed is actually the same name with that borne by the party who signs it. So there may be forgery by the use of a fictitious name as well as by the use of a person's own name, if the intent exists to commit a fraud by deception as to the identity of the person who uses the name." State v. Wheeler, 20 Oregon 192 (25 P. 394, 23 Am. St. R. 119, 121). Since there was no deception as to the identity of Joe W. Gilbert or T. W. McPeak there was no forgery of the indorsement. The only fraud relied on by the plaintiff is that of McPeak in representing that he would carry out a contract. The plaintiff in error, by making out the check as he did and mailing it to McPeak at his post office number, put it in the power of McPeak to negotiate the check, and Code § 37-113 applies. See also U.S. v. Continental American Bank Trust Co., 175 Fed. (2d) 271. The contention that Joe W. Gilbert, or McPeak, by his indorsement, represented that he was the agent of a partnership or corporation is not well founded. There is no evidence to that effect. The only possible conclusion from the evidence is that Joe W. Gilbert did business with the North Carolina Bank in a trade name, in which case he was the principal actor rather than an agent. The case of McCornack v. Central State Bank, 203 Iowa 833 ( 211 N.W. 542), is distinguishable in that in that case the indorser represented himself to be the agent for the fictitious payee.
The court did not err in finding for the defendant.
Judgment affirmed. Sutton, C.J., and Worrill, J., concur.