Meyer v. Hellman Commercial Trust & Savings Bank

[579]

JOHNSON, J.,

pro

tem.

This is an action for money had and received, brought by plaintiff as one of defendant’s depositors with two accounts, one a commercial account opened in December, 1920, and the other a savings account opened in March, 1921. Judgment was rendered for plaintiff for $3,702.36, and from that judgment defendant appeals.

Respondent neither having filed a brief nor presented oral argument, the appeal must be determined upon the trial record with the aid of appellant’s brief alone.

The controversy arose out of withdrawals of money upon certain checks bearing plaintiff’s name as drawer, but, as she claims, with the signatures forged by a man named Berthold, now in the penitentiary under sentence for forgery of plaintiff’s name in a wholly independent transaction, which occurred in December, 1921, and in no way affected this defendant. The testimony on behalf of plaintiff was her own, her daughter’s, and Berthold’s, who, in a deposition taken in San Quentin prison on behalf of plaintiff, swore that by forging plaintiff’s name to checks, some of which, paid and canceled, were introduced in evidence, he had drawn about $4,000 from plaintiff’s account with defendant, and had lost the money in gambling. The chief witness called by defendant was a handwriting expert, I. N. Inskeep, who pronounced the disputed signatures to the checks in evidence to be genuine signatures of plaintiff. The court might equally well have decided upon the evidence for defendant rather than plaintiff, but nevertheless it did resolve the conflict in favor of plaintiff. Defendant frankly concedes that having been unsuccessful in convincing the trial court of the genuineness of the signatures in question, it cannot hope for a reversal upon the evidence as a whole. The theory of defendant was that plaintiff had either shared in the moneys drawn (though this was denied both by plaintiff and Berthold), or that plaintiff had put into Berthold’s' hand's checks signed in blank by herself, ' and that Berthold had then filled in the amounts to suit his own purposes, the body of the disputed checks being in his undisguised and admitted handwriting.

. Defendant’s reliance is placed, therefore, upon the alleged error in admitting at the trial a certain portion of Berthold’s deposition in reference to a conversation between him and Mr. Bell, vice-president of the defendant bank. Plain