United States v. National Exchange Bank of Providence/Opinion of the Court
A preliminary matter needs to be noticed. In the opinion of the circuit court of appeals it is said (italics ours):

'The precise form of only one of the socalled checks is shown by the record, as follows:

United States Pension Agency, No. 297073.

Boston, Mass., Mch. 5, 1892.

Assistant Treasurer of the United States, Boston, Mass.

Pay to the order of Mahala B. Jaques 9492 B

W. H. Osborne,

U.S. Pension Agent.

Paid Mar. 12, 1892,

Asst. Treas., Boston.

'Indorsements:

Mahala B. Jaques,

Payee.

M. M. Angell.

Pay Nat. Bank of the Republic, Boston, or order, for      collection, for account of First National Bank, Providence,      R. I.

C. E. Lapham,

Cashier.

Indorsement Guaranteed.

Nat'l Bank of the Republic, Boston.

'This is, however, understood to be a sample of the remaining checks. As they were drawn by the pension agent on the Assistant Treasurer of the United States, the question naturally arises whether, after all, they were anything more than official warrants,-a question which we will turn to later. It will be observed, however, that no indorsement by the Exchange Bank appears on the sample shown in the record, and whatever indorsement there is is simply 'for collection."

The sample check thus referred to is also set out in the opinion delivered in the circuit court. But no such check is in the record, nor is it embraced in the list of checks collected by the Exchange Bank, and for which recovery is sought by the United States. Presumably the stated sample check must have been inadvertently taken from the record in an action against some other bank. At all events, as it is not in argument questioned that the Exchange Bank was the holder of the checks sued for, when they were paid by the United States, we shall assume the correctness of the recital in the agreed statement of facts, that the checks 'with the forged signatures thereon were cashed by the defendant, who immediately indorsed the said checks to a national bank in Boston for collection.'

The circuit court of appeals reversed the judgment in favor of the United States upon the ground that, by the operation of an exceptional rule, said to prevail, under certain conditions, as to commercial paper, the United States could not recover for the mistaken payments, as there had been unreasonable delay in giving notice to the Exchange Bank after the discovery of the forgeries. The correctness of this action is assailed in the assignments of error, the government contending that the pension checks in question were mere Treasury warrants, not commercial paper in the true sense of that term, and hence not controlled by the so-called exceptional commercial rule; but that, even if the checks were commercial paper, and governed by such rule, mere negligent delay in giving notice of the discovery of the forgery would not prevent recovery unless the Exchange Bank established by proof that it had thereby suffered damage. It is besides claimed that if the agents of the government were negligent in giving notice of the discovery of the forgeries, their laches cannot be imputed to the United States. The Exchange Bank not only traverses these assignments, but insists that the claim of the United States to recover was rightfully rejected, because the duty was on it not only to give prompt notice of the discovery of the forgeries, but also to discover cover the forgeries promptly after payment,-a contention which is controverted by the government.

In order to simplify the issue for decision we concede, for the sake of the argument only, that the forged instruments were not official warrants, as contended by the government, but, in a generic sense, are to be classed as negotiable commercial paper, and that, in a case coming within the exceptional rule referred to, the laches of the authorized agents of the government can be imputed to it. But, assuming the instruments to be negotiable paper, the question yet remains whether the right of the United States to recover from the Exchange Bank is controlled or limited by the exceptional rule referred to.

That, in certain classes of cases, an exceptional rule is enforced in England as to commercial paper, by which, under particular circumstances, such paper is taken out of the operation of the general rule relating to the recovery of money paid by mistake, is not subject to question. Price v. Neale, 3 Burr. 1354; Smith v. Chester, 1 T. R. 654; Smith v. Mercer, 6 Taunt. 76; Wilkinson v. Johnson, 3 Barn. & C. 428; Cocks v. Masterman, 9 Barn. & C. 902. The decisions referred to, however, show that the exception was limited to cases where the person who paid a forged instrument, and who sought recovery of the amount paid, was charged with knowledge of the genine signature of the person whose name was forged, and, therefore, was presumed to have been negligent in making the payment. For instance, where one accepted a draft purporting to be drawn upon him by a customer whose signature he was presumed to know, which afterwards turned out to be a forgery. Again, where a draft which purported to have been accepted, and, by the seeming act of acceptance, was made payable at a particular bank, which paid the same for account of its customer, the apparent acceptor, and it afterwards turned out that the acceptance was a forgery, the exceptional rule was applied.

Several of the English cases above cited were reviewed by this court in Bank of United States v. Bank of Georgia, 10 Wheat. 333, 348, et seq., 6 L. ed. 334, 339. In that case recovery of moneys paid was denied to a bank which had received as genuine notes it had issued, but which had been fraudulently altered as to amount after being put in circulation, the decision having been rested (p. 353) 'upon the broad ground that there was an acceptance of the notes as genuine, and that it falls directly within the authorities which govern the cases of acceptances of forged drafts.'

The exceptional rule was thus noticed in the opinion delivered in Cooke v. United States, 91 U.S. 389, 396, 23 L. ed. 237, 242:

'It is, undoubtedly, also true, as a general rule of commercial law, that where one accepts forged paper purporting to be his own, and pays it to a holder for value, he cannot recall the payment. The operative fact in this rule is the acceptance, or, more properly, perhaps, the adoption, of the paper as genuine by its apparent maker. Often the bare receipt of the paper, accompanied by payment, is equivalent to an adoption within the meaning of the rule; because, as every man is presumed to know his own signature, and ought to detect its forgery by simple inspection, the examination which he can give when the demand upon him is made is all that the law considers necessary for his protection. He must repudiate as soon as he ought to have discovered the forgery; otherwise he will be regarded as accepting the paper. Unnecessary delay, under such circumstances, is unreasonable; and unreasonable delay is negligence, which throws the burden of the loss upon him who is guilty of it, rather than upon one who is not. The rule is thus well stated in Gloucester Bank v. Salem Bank, 17 Mass. 45: 'The party receiving such notes must examine them as soon as he has opportunity, and return them immediately; if he does not, he is negligent; and negligence will defeat his action." Although it has been considered that, in later cases, courts of England have mitigated the strictness of the exception unheld in the cases we have previously cited, and have made the right to recover back embraced in such cases depend somewhat upon the prejudice occasioned by the delay in giving notice (Chitty, Bills, 464), it is certain that the exception has not been extended so as to cause it to include a case like the one before us. Imperial Bank v. Bank of Hamilton [1903] A. C. 49. And, although the courts of some of the states of the Union have limited, restricted, or declined to follow the exceptional rule,-see the subject reviewed in Greenwald v. Ford (1906) 21 S. D. 28, 109 N. W. 516, and First Nat. Bank v. Bank of Wyndmere (1906) 15 N. D. 299, 10 L.R.A. (N.S.) 49, 108 N. W. 546,-we have been cited to no decision of a court of last resort, involving a case like the one before us, where it was held that such a case is controlled by the exceptional rule. True it is, a decision of the supreme court of New York, rendered in 1841 (Canal Bank v. Bank of Albany, 1 Hill, 287), involving analogous facts, has, by some text writers, been treated as holding a doctrine which might be considered as establishing that the exceptional rule, as somewhat qualified by the decision in question, would be applicable to a case like the one before us. In the case referred to it was decided that where the bank upon which a draft was drawn paid it in ignorance of the fact that the supposed signature of the person to whom it was payable had been forged, it could not recover back the money without exercising reasonable diligence to give notice after the discovery of the forgery. We think, however, it is apparent that the court considered not that it was applying the exceptional rule, but that it was simply announcing its conception of the general principle as to the right to recover back money paid by mutual mistake. This is evident, since the court, after holding that the case before it was not governed by the exceptional rule, remarked that 'where each party enjoys the same chance of knowledge, no case demands anything more than reasonable diligence in giving notice after the discovery of the forgery.' No authority, however, was cited on this proposition, nor was any intimation given by the court as to whether, even if there had been negligence in giving notice, recovery would not be permitted if no damage had been occasioned by the delay to the party to whom the payment had been made. A later case in New York enforced a principle which we deem applicable to the present controversy. The case is White v. Continental Nat. Bank, 64 N. Y. 316, 21 Am. Rep. 612. The facts were these: A customer of the firm of White & Company drew a draft on that firm for $27. After the delivery of the draft to the payee it was raised to the sum of $2,750. The raised draft came into the possession of the Continental National Bank of New York city, who took the same from a customer, who was credited with and drew the amount. The Continental Bank presented the draft to White & Company, and that firm accepted the same, payable at the Leather Manufacturers' National Bank. When due, the Leather Manufacturers' Bank paid the Continental Bank, and debited the account of White & Company. This payment was made in August. Monthly accounts passed between White & Company and its correspondent by whom the draft had been drawn, but the August account, which was rendered in the early part of September, was not examined. When the next account came along and was examined, the alteration of the draft was discovered, and White & Company, evidently being bound to the Leather Manufacturers' Bank by the payment made by that bank at the request of White & Company, and for their account, notified the Continental Bank, demanded repayment, and, on refusal, brought suit to recover. The trial court enforced the exceptional rule and denied the right of White & Company to recover. The court of appeals, while substantially conceding that, if the forgery had been of the name of the drawer of the draft, White & Company, because of their presumed knowledge of such signature, would have been, by their acceptance, brought within the exceptional rule, decided that the rule was not applicable, because the forgery concerned not the signature, but the body of the draft, of which White & Company were not presumed to have knowledge. Thus eliminating the exceptional rule, the court held that, as the Continental Bank had presented the forged draft for payment, and had, under the principles of commercial liability, at least impliedly warranted its genuineness, the bank was liable to repay to White & Company. Although resting its conclusion upon the warranty on the part of the Continental National Bank of the genuineness of the instrument which it presented, the court, nevertheless, at the close of the opinion, observed (p. 322):

'But, waiving the question as to the responsibility of the defendant for the genuineness of the instrument, and taking the most favorable view for the defendant, which is to regard it as the case of a mutual mistake, in respect to which neither was in fault, and in that view and upon that theory, the case is within the principles decided in Bank of Commerce v. Union Bank, 3 N. Y. 230; Kingston Bank v. Eltinge, 40 N. Y. 391, 100 Am. Dec. 516.'

White v. Continental Nat. Bank was cited and the doctrine therein expressed was approved and applied by this court in Leather Mfrs.' Nat. Bank v. Merchants' Nat. Bank, 128 U.S. 26, 32 L. ed. 342, 9 Sup. Ct. Rep. 3. The opinion in that case, delivered by Mr. Justice Gray, was announced on October 22, 1888, and was subsequent in date to several decisions of lower Federal courts, cited in the opinion of the court below in this case, and which were deemed to conclusively demonstrate that the United States was not entitled to recover. In the Leather Mfrs.' Bank Case the question for decision was thus stated in the opinion:

'The question, then, is whether, if a bank, upon which a check is drawn, payable to a particular person or order, pays the amount of the check to one presenting it with a forged indorsement of the payee's name, both parties supposing the indorsement to be genuine, the right of action of the bank to recover back the money from the person so obtaining it accrues immediately upon the payment of the money, or only after a demand for its repayment.'

The right of action was held to have accrued upon the payment of the money. After distinguishing the case from one which involved the relations of a bank and its depositors, the relations of a bank and its depositors,

'But, as between the bank and the person obtaining money on a forged check or order, the case is quite different. The first step in bringing about the payment is the act of the holder of the check, in assuming and representing himself to have a right, which he has not, to receive the money. One who, by presenting forged paper to a bank, procures the payment of the amount thereof to him, even if he makes no express warranty, in law represents that the paper is genuine; and, if the payment is made in ignorance of the forgery, is liable to an action by the bank to recover back the money, which, in equity and good conscience, has never ceased to be its property. It is not a case in which a consideration which has once existed fails by subsequent election or other act of either party, or of a third person; but there is never, at any stage of the transaction, any consideration for the payment. Espy v. First Nat. Bank, 18 Wall. 604, 21 L. ed. 947; Gurney v. Womersley, 4 El. & Bl. 133; Cabot Bank v. Morton, 4 Gray, 156; Aldrich v. Jackson, 5 R. I. 218; White v. Continental Nat. Bank, 64 N. Y. 316, 21 Am. Rep. 612.

'Whenever money is paid upon the representation of the receiver that he has either a certain title in property transferred in consideration of the payment, or a certain authority to receive the money paid, when, in fact, he has no such title or authority, then, although there be no fraud or intentional misrepresentation on his part, yet there is no consideration for the payment; and the money remains, in equity and good conscience, the property of the payer, and may be recovered back by him, without any previous demand, as money had and received to his use. His right of action accrues, and the statute of limitations begins to run, immediately upon the payment.

*  *  *  *  *

'In the case at bar, as in the case last cited, the plaintiff's right of action did not depend upon any express promise by the defendant after the discovery of the mistake or upon any demand by the plaintiff upon the defendant, or by the depositor or any other person upon the plaintiff; but it was to recover back the money, as paid without consideration, and had and received by the defendant to the plaintiff's use. That right accrued at the date of the payment, and was barred by the statute of limitations in six years from that date.'

We are of the opinion that the case before us is directly within the principle governing the ruling made in the case just cited as well as within the doctrine of White v. Continental Nat. Bank, which in effect, as we have shown, was approved by this court in Leather Mfrs' Nat. Bank v. Merchants' Nat. Bank. The United States is not before us as the acceptor of a draft drawn upon it, and charged with knowledge of the signature of the drawer; nor was it a bank which had paid the check of a depositor, and was charged with knowledge of the signature of such depositor. The forgery here was in the name of the payee, and it is therefore impossible, as it was in the case of White v. Continental Nat. Bank and in the Leather Mfrs' Bank Case, to bring this cause within the exceptional rule without holding that the United States was charged with knowledge of the signatures of the vast multitude of persons who are entitled under the law to receive pensions. The exceptional rule as to certain classes of commercial paper proceeds upon an assumption of knowledge or duty to know, naturally arising from the situation of the parties, entirely consonant with their capabilities, and in accord with the common-sense view of their relation. To apply the rule, however, to the government and its duty in paying out the millions of pension claims which are yearly discharged by means of checks would require it to be assumed that that was known, or ought to have been known, which, on the face of the situation, was impossible to be known; would besides wholly disregard the relation between the parties, and would also require that to be assumed which the obvious dictates of common sense make clear could not be truthfully assumed. But, conclusive as are these considerations, the case does not alone depend upon them, since we think legislation of Congress in reason precludes the conception that it was contemplated that the United States (or its agents) had actual knowledge of the signatures of pensioners, and, in paying pensions, was bound to all the world under such an assumption.

By §§ 4764 and 4765, Rev. Stat. (U.S.C.omp. Stat. 1901, pp. 3284, 3285), it is required before a pension check shall be issued, that vouchers shall be supplied, and the duty is cast upon the Secretary of the Interior of making rules and regulations to establish the identity of the pensioner. As shown by the record, the regulations thus promulgated require vouchers to be signed in duplicate before an officer authorized to administer an oath, or before a fourth-class postmaster. The pensioner is required to exhibit his pension certificate to such officer, and also to sign and make oath to a statement as to his identity, his existing right to the pension, and his postoffice address. The officer is required to certify as to inspection of the pension certificate; that the pensioner was fully identified; that he had signed the duplicate receipts; and the address of the pensioner is to be stated in the certificate. These requirements are incompatible with the assumption that the government was chargeable with knowledge of the identity, continued existence, and right to pensions, or with the signatures, of those entitled to receive pension moneys. The requirement by the government of proof, for its own protection, affords no ground for the contention that, as to any action taken as the result of the furnishing of such proof, the government is estopped as to third parties from showing that the proofs furnished were false and fraudulent, and that the government had been deceived thereby. To so hold would be to say that, from the act of exerting a precaution against fraud, there arose a presumption by which the fraud could be successfully accomplished. This would be the case if it were now held that, because by forged vouchers the government was deceived into acting, third parties had a right to rely upon the integrity of the proof, and to estop the government as though representations as to the verity of such proof had been made by it to such third parties. The rights, therefore, of the bank as the apparent acquirer of the pension checks are to be governed by the nature and character of the instruments, and cannot be enlarged so as to relieve the bank from the obligation of warranty implied in the presentation of checks and the collecting of the amount. The subject is aptly illustrated in the opinion by Coxe, Judge, in United States v. Onondaga County Sav. Bank, 39 Fed. 259, affirmed by the circuit court of appeals for the second circuit in 12 C. C. A. 407, 26 U.S. App. 377, 64 Fed. 703.

As the nature of the forgery did not cause the case to be controlled by the exceptional rule, and as the Exchange Bank, when it presented the checks and obtained thereon the money of the United States, by operation of law warranted the genuineness of the instruments which it thus presented and upon which it asked and received payment, it follows that the case in substance is accurately portrayed in observations made by the court of appeals of New York in the White Case, at pages 320, 321:

'The facts which disentitled the defendant to receive the money, and in ignorance of which it was paid, were those presumed to be within the knowledge of the defendant, and not of the plaintiffs. The defendant, in receiving the money and in disposing of it, did not act upon the faith of any admission by the plaintiffs, express or implied, of any fact which they now controvert in prosecuting this action. There was, therefore, no want of good faith, no negligence, or even want of ordinary care on the part of the plaintiffs in the payment of the money. The defendant, in the entire transaction, acted upon other evidence of its right to the money than the statement or actions of the plaintiffs, and, in dealing with the bill and with the money, its avails, acted upon the apparent title and genuineness of the instrument, and the responsibility of those from and through whom it received the bill. The plaintiffs, therefore, owed no duty to the defendant in respect to the forgery, which invalidated the bill and its title to the moneys represented by it.'

Under these conditions the warranty of genuineness implied by the presentation and collection of the checks bearing the forged indorsement having been broken at the time the checks were cashed by the United States, and the cause of action having therefore then accrued, the right to sue to recover back from the Exchange Bank was not conditioned upon either demand or the giving of notice of the discovery of facts which, by the operation of the legal warranty, were presumably within the knowledge of the defendant.

The conclusion to which we have thus come renders it unnecessary to consider whether, if the facts presented merely a case of mutual mistake, where neither party was in fault, and reasonable diligence was required to give notice of the discovery of the forgery, if there was lack of such diligence, it would operate to bar recovery by the United States, although the Exchange Bank was not prejudiced by the delay.

The judgment of the Circuit Court of Appeals must be reversed and the judgment of the Circuit Court affirmed.

And it is so ordered. 

Notes