Trust Co. Bank v. Union Circulation Co. ( 1978 )

Pope, Judge,

concurring specially.

I concur in the majority opinion. This case addresses itself to a classical kind of situation — that is, one in which the thief, a trusted employee, takes the instrument from the payee, the employer, forges the payee’s endorsement, and "cashes” the check at a depositary bank. Because the employee is in a trusted position, much time has elapsed before the conversion is discovered.

While the instances in which the phrase in Code Ann. § 3-807 "or those under whom he claims” is to be applied is obscure, it is clear that the general policy behind this suspension provision is that a defendant ought not to be allowed to take advantage of his own wrong by concealing it until the statute has run. However, in this case it appears it is the fraud of the employee, not the bank, which has delayed the bringing of the suit.

It is also interesting to examine appellee’s contention that the bank does in fact claim under the forged endorsements, relying for this proposition on Frye v. Commonwealth Invest. Co., 107 Ga. App. 739 (131 SE2d 569) (1963). The doctrine of negotiability itself could be said to preclude the depositary bank from "claiming under” the employee since the bank cannot claim the status of a holder in due course. §§ 109A-3 — 404, 109A-1 — 201 (43). "Negotiability,” the core concept of our system of commercial paper, means that to the extent one is a holder in due course he takes free of most claims. He acquires new rights. And under the Code the question of liability for conversion does not rest on title although the instrument is still the property of the payee whose signature was forged. However, the statutory cause of action under Code Ann. § 109A-3 — 419 was created without reference to technical concepts of ownership. See Bender’s U. C. C. Service, Hart & Willier, Commercial Paper § 12.38.

Considering the purpose of the tolling provision and the fact that a conversion action does not depend on technical concepts of ownership in a suit for conversion, the mere fact that the bank cashes the instrument does not mean it claims under the wrongdoer. In the absence of a showing that Trust Company Bank colluded or participated in the fraud of the employee or that Trust Company Bank held any confidential or fiduciary relationship with the employer the statute of limitation would not be tolled. I concur that Division 2 of the Court of Appeals opinion be reversed and remanded for a determination on the issue of fraudulent collusion or of a special duty owed by Trust Company Bank to Union Circulation Co., Inc.