Armstrong v. Brolaski

46 F. 903, 1891 U.S. App. LEXIS 1368

• Court: U.S. Circuit Court for the District of Eastern Missouri
• Decided: June 22, 1891
• Status: Published

Opinion

Thayer, J.,

(after stating the facts as above.) 1. The first question to be considered is whether this action is'brought against the drawer of the lost check. Inasmuch as defendant did not disclose by his signature to the check for whom he w»as acting as agent, if for any .one, and inasmuch as the proof shows that he subsequently treated the deposit against which the check was drawn as his own, by withdrawing it and depositing it to the credit of H. Brolaski, I must conclude that defendant in drawing the check was acting for himself, and not as agent for some other person.

2. The next question is whether the defendant is liable, assuming that the'action is properly brought against him as drawer? The Fidelity Bank-was the holder of the check for value at the time it was lost in, th.e.,mail. Defendant has received full credit for the amount of the check in his account with H., S. & H.., in whose favor it was drawn, and- o'n the state of facts above disclosed the plaintiff has no recourse against prior indorsers. It is well settled that the drawer of a check, who withdraws the fund against which the same is drawn, thereby renders himself personally liable to the holder of the check for the amount thereof without presentment to the drawee, and without notice of nonpayment. The drawer of a check-is not entitled to presentment' or notice, when by his own act he has rénderéd presentment useless. Daniel, Neg. Inst. § 1596, and citations.

8.- Some stress was laid on the fact that defendant ordered all checks signed, “EL Brolaski, Agent,” to be paid out of money standing to the credit.of EL -Broláskí, but I am compelled to.regard that'fact asimma-teriáh-, To entitle a bank to pajr a check out of a given deposit, thé check símuld-'beaf the signature of the depositor- in precisely the same form that the deposit is entered on the bank’s books. Id. § 1612, and citations. - I, have no doubt that the directions given by Brolaski were ample to protect the bank in paying the lost check out of his account, if-it had been presented, but, to render such directions of any avail as against the plaintiff, he should have had notice that such directions had been -given.' Upon the whole, I conclude that the defendant made himself liable to the-plaintiff by withdrawing the deposit, and there seems to.--be.no'necessity of requiring the plaintiff to give bond as a condition -pfRecovery, .as the loss occurred so long ago, and the check was so indorsed -that -no1 one can -acquire a title thereto. Judgment will be entered-for $327.50, with interest- only, from this date, June'22, 1891.