Mills v. Barney

California Supreme Court Jul 1, 1863Published

Before: Cope, Crocker, Norton

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Holding. The court held that defendants, as indorsers of a certificate of deposit, are liable to the plaintiffs for the amount paid on the certificate because the antecedent indorsement was a forgery, rendering the title void and the consideration for the transfer a failure.

Issues

Whether a complaint stating facts that support recovery on multiple legal grounds is insufficient.
Whether an indorser of a certificate of deposit is liable for the amount received when the antecedent indorsement is a forgery.
Whether the costs of a prior suit against the plaintiffs are recoverable from the defendants.
Whether an objection to the sufficiency of an averment of demand can be raised for the first time on appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“By this indorsement the defendants, in contemplation of law, undertook that they possessed a clear title to the certificate deduced from and through all the antecedent indorsers”

“As such indorsers, they cannot complain if called upon to repay the money which they have received upon their indorsement of a title which turns out to be void on account of the forgery of the antecedent indorsement”

Synopsis

Appeal from the Sixth Judicial District.

The facts are stated in the opinion.

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring. In the year 1859, Joseph Cox, deposited with the plaintiffs, who are bankers, in the City of Sacramento, the sum of $2,000, for which they issued to him a certificate of deposit, in the usual form. Afterwards, in 1861, the certificate was presented for payment at their banking house, indorsed as follows :

“ Pay to the order of Daniel Clark.

“ JOSEPH (his X mark) COX.

“ Pay to the order of Wells, Fargo & Co.

“DANIEL CLARK.

“ Indorsement of Daniel Clark is correct.

“ W. F. & CO.—ELDRIDGE.”

It was duly paid upon presentation, to the agent of Wells, Fargo & Co., the defendants. Immediately after the payment, it was noticed that the indorsement of Wells, Fargo & Co. did not certify to the genuineness of the signature of Cox, and one of the plaintiffs proceeded with the certificate to the office of the defendants, and there found one Hayden, an agent of defendants, from whom they demanded a repayment of the money, or a guarantee of the genuineness of Cox’s signature. Hayden thereupon wrote upon the back of the certificate, “ For Wells, Fargo & Co.—Hayden,” and handed it back, saying, “ That makes it all right,” and he then returned with it. It seems that the certificate had been lost by or stolen from Cox, and that his pretended signature was a forgery. After the payment of the certificate to Wells, Fargo & Co., Cox sued the plaintiffs to recover the amount of the certificate, and they gave immediate notice thereof to Wells, Fargo & Co., and endeavored, unsuccessfully, to make them parties to the action, the motion to that effect being opposed by the defendants. Cox recovered judgment in that suit against the plaintiffs on the first day of November, 1861, for $2,125 53, which they paid. They then demanded of the defendants the repayment of the amount thus paid by them, which was refused, and the plaintiffs then brought this action to recover the same. At the trial the jury found the following special verdict:

[2471]st. Did the defendants receive from plaintiffs, on delivery of the certificate of deposit in evidence in this case, the sum of $2,000 ? Answer—Yes.

2d. Did the defendants receive said sum as principals, or as agents for Daniel Clark ? Answer—As agents for Daniel Clark.

Mills v. Barney

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Synopsis

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