Lesley v. Ewing

Opinion by

Me. Justice Mesteezat,

We must sustain the first two assignments of error and reverse this judgment. The payee of the check over which this controversy arises was called as a witness by the plaintiff and was asked the single question of whether his endorsement on the check was genuine to which he replied in the negative. The defendant’s counsel was then permitted to cross examine the witness at great length. While the range of cross examination rests largely in the discretion of the court, we think that in this instance it is justly open to the appellant’s criticism that entirely too much latitude was allowed. During the cross examination the counsel interrogated the witness as to other irregularities by Futrell, who had negotiated the transaction in which the check was given, and also as to the forged endorsement of other checks which had passed through the hands of Futrell. It did not appear that these other irregularities and forgeries were in any way connected with the forgery of the payee’s name in the transaction out of which this suit grows. The objection by the plaintiff’s counsel therefore should have been sustained and the testimony excluded. It was wholly irrelevant to the question at issue in this action. Its effect was to lead the jury to believe that the irregularities of Futrell in matters of this kind were of general knowledge and that the plaintiff should or might have known of them and was, therefore, negligent in carrying on the transaction with Futrell and in entrusting the check to him. The testimony had no place in the case, and was clearly prejudicial to the plaintiff.

The argument of counsel is devoted principally to the question of whether the failure to discover the forgery in the absence of any evidence that the defendants were injured or prejudiced thereby was a defense to the action brought by the drawer of the check to recover from the drawee bank. We need not consider the question at this time as we do not regard it as being raised by the assignments of error. It is predicated manifestly of the fourth and fifth assignments but neither of them raises the question. They both go to the question of whether the plaintiff was negligent in giving notice of the forgery after it had been discovered by him. That he must act promptly and notify the bank upon the discovery of the forgery we have very recently held in McNeely v. Bank of North America, 221 Pa. 588. The negligence of a depositor in failing to discover the forgery of the endorsement of his check was not considered or determined in the McNeely case, and as it is not raised here by the assignments of error it can not be considered.

The first and second assignments are sustained, and the judgment is reversed with a venire facias de novo.