National Bank of Commerce v. Fish , 67 Okla. 102 ( 1916 )

For reversal it is again urged that the court erred in excluding evidence offered by defendants to prove that, by letter dated February 12, 1909, certain parties connected with defendants Pauls Valley National Bank and the First National Bank of Wynnewood had made certain charges (undisclosed by the record) against Graham, and had notified Fish that they desired to withdraw former letters, recommending Graham to him, and that Fish replied, in effect, that Graham had been his agent for two or three years; that his business had been profitable; that he was honest and straight; that the banks had no reason for writing such a letter; and that, unless they made good their charges, they might get into trouble. There was no error in excluding this evidence, although this was on cross-examination of Fish, who, on direct examination had testified, over defendant's objection, that he had full confidence in Graham's integrity; this for the reason that the pleadings did not raise the issue of the negligence of Fish in retaining Graham as his agent during the time the forgeries were committed, and hence such evidence was without the issues and irrelevant and immaterial. We say that such testimony was without the issues; for, turning to the pleadings, they disclose that, to escape liability, it was alleged only that after the Spain check had been paid by the drawee bank the same was returned to plaintiff about March 1, 1908, that plaintiff failed to notify said defendant that the indorsement thereon was forged until December, 1909, and that in the meantime Graham had removed himself and his property out of the county and placed it beyond the reach of said bank. All of which was denied by plaintiff, who alleged that said removal took place long before he discovered the forgery. Such being the state of the pleadings, we fail to see how this letter and the reply thereto, if admitted in evidence, could tend to even put plaintiff on his guard that one or more of his canceled checks contained the forged indorsement of Graham, much less tend to support the allegation that, after he knew it, he failed to notify the payee bank, and thereby deprived it of an opportunity to protect itself.

It is next contended that this court, having all the facts before it, "should render a proper judgment, which should run, first, against the banks which accepted and paid the cheeks with the forged indorsements, thus making them primarily liable, with a secondary liability upon the National Bank of Commerce." But the state of the record will not permit us to do so, if we were otherwise inclined, which we are not. Pertinent to this, the record discloses that at the instance of counsel for the National Bank of Commerce the trial court sustained a demurrer to plaintiff's evidence in favor of the defendants Pauls Valley National Bank and First National Bank of Wynnewood, but overruled it as to the National Bank of Commerce, and rendered judgment, in effect, that plaintiff take nothing as against the former, but have judgment against the latter bank, which alone complains and brings the case here. Now, as to do as requested by counsel would be, in effect, to hold that the court erred in sustaining counsel's own demurrer, we decline. Besides, as Rev. Laws 1910, § 4118, provides, "As respects one another, indorsers are liable prima facie in the order in which they indorse," which is in keeping with the general rule stated in 4 Am. Eng. Enc. Law, 483, thus, "In respect to the liability of the indorsers inter se, the rule is that they are prima facie liable to each other in the order in which their indorsements successively appear, each indorser being liable to all succeeding indorsers, but not to preceding ones," it would seem that the order of liability should be the other way, and might have been had the National Bank of Commerce, in a cross-action against its codefendants, prayed for alternative relief in that, should plaintiff have judgment against it for the amount of his loss, it have judgment over against them as prior indorsers of the checks for the amount of its loss; but such relief, not having been prayed and these codefendants thereby given their day in court to defend against an action over against them, we cannot render such judgment against them here.

There is no merit in the remaining contentions.

All the Justices concur, except HARDY and KANE, JJ., who dissent.