E. S. Karoly Electrical Construction Co. v. Globe Savings Bank ( 1896 )

Mr. Justice Waterman

delivered the opinion of the Court.

It appears that these checks were made payable to a man who called himself, and was believed by the maker of the checks to be, Gr. Budelius. This man, who was dealt with as, and who called himself, Gr. Budelius, has never since been seen.

There is nothing to show that this man did not indorse the checks; no evidence that the name G. Budelius was written by any other person. In brief, no showing that his name was forged.

The fact that a man named G. Budelius has been found who testifies that the signatures on the backs of the checks are not his, does not establish that the signatures are not those of the man to whose order the checks were made payable; more especially when it is admitted that the witnesss G. Budelius, is not the person with whom the maker of the checks dealt.

Neither does the fact that appellant, who introduced to Tolman the man calling himself “ G. Budelius,” afterward told Tolman that he had been mistaken and that the name of the man was “ Herman Fred ” prove the indorsements “ G. Budelius ”to have been forgeries.

If Herman Fred had made his promissory note by the name of G-. Eudelius, such note would have bound him. So too, if Herman Fred, passing himself off as bearing the name of G. Eudelius, received checks intended for him, Herman Fred, payable to the order of G. Eudelius, his indorsements thereon of his assumed name bound him, and there being no intent to defraud and no one being defrauded, would not be a forgery. Bishop on Grim. Law, Yol. 2, Sec. 596; Begina v. Hodgson, 36 L. & Eq. 626.

On the other hand, if the witness, G. Eudelius, had indorsed his name thereon with intent to defraud and had thus defrauded the person for whom the checks were intended and belonged, he, G. Eudelius, would have been guilty of forgery. Bishop on Criminal Law, Sec. 584.

Every John Smith can not lawfully indorse checks payable to a particular J ohn Smith.

The question in the case at bar was not strictly whether a forgery had been committed, but whether the name G. 'Eudelius had been indorsed upon the checks by the person to whose order by that name the checks were made. Hoge v. First Nat’l Bank, 18 Ill. App. 501; Shearer v. Pacific Exp. Co., 43 Ill. App. 601; Same, 160 Ill. 215.

Upon this the burden was upon appellee to show that the checks had not been so indorsed. Appellee alleged that it had accepted the checks upon a forged indorsement. This it did not prove.

The judgment of the Superior Court is reversed, and the cause remanded.