Opinion · Ohlaw Ohio
RUBBER CO. v. BANK, 159 Ohio St. 423 (1953)
FIRESTONE TIRE RUBBER CO., APPELLEE v. Cent. Nat’l BANK OFCLEVELAND, APPELLANT., 112 N.E.2d 636 (Ohio 1953)
- Type
- Opinion
- Court
- Ohlaw Ohio
- Jurisdiction
- Ohlaw
- Date
- 1953-05-13
- Topic
- general
RUBBER CO. v. BANK, 159 Ohio St. 423 (1953) 112 N.E.2d 636 FIRESTONE TIRE RUBBER CO., APPELLEE v. CENTRAL NATIONAL BANK OFCLEVELAND, APPELLANT. No. 33051Supreme Court of Ohio. Decided May 13, 1953.
Citator
UpLaw has not yet analyzed RUBBER CO. v. BANK, 159 Ohio St. 423 (1953). The absence of a flag is not a finding that it is good law.
RUBBER CO. v. BANK,159 Ohio St. 423(1953)
112 N.E.2d 636
FIRESTONE TIRE RUBBER CO., APPELLEE v. CENTRAL NATIONAL BANK OF
CLEVELAND, APPELLANT.
No. 33051
Supreme Court of Ohio.
Decided May 13, 1953.
1. Where the payment of an obligation is made by the obligor's check directly to the original payee and such check does not pass through the hands of an intermediary, the payee does not become a bona fide holder thereof in due course.
2. The general rule is that money paid under the mistaken supposition of the existence of a specific fact which would entitle the payee to the money, which money would not have been paid had it been known to the payer that the fact did not exist, may be recovered.
3. Negligence of the payer in failing to discover the facts will not prevent recovery where the payment is actually made under mistake of fact, and the mere failure of the payer to avail himself of means of knowledge will not preclude his recovery unless it appears that he intended to waive inquiry into the facts, was under a legal duty to ascertain them or is by law presumed to have knowledge of them.
4. Money paid to another under the mistaken supposition of the existence of a specific fact which would entitle the other to the money, which money would not have been paid had it been known to the payer that the fact did not exist, may be recovered, provided the payment does not result in such a change in the position of the payee that it would be unjust to require a refund.
5. The test of the right of recovery of money paid under mistake of fact is whether the payee has a right to retain the money and not whether he acquired possession of it honestly or in good faith. If the money belongs to the payer and the payee can show no legal or equitable right to retain it he must refund it.
6. One who originates a purported obligation of a payer to pay him as payee must take proper precautions to learn whetherPage 424the purported claim or demand which he presents to the payer for payment is genuine, and if the payee, through indifference or negligence, assists, though innocently, in any fraud or mistake which induces a payment on such obligation, he will not be permitted to retain the proceeds of the payment made by the payer whose sole fault was that he did not discover the fraud or mistake before the payment was made, unless such payee in good faith changes his position so that he is in a worse position if he is required to refund it, than if the payer had refused to pay.
7. Where a payee accepting payment under a mistake of fact changes his position or disburses the money in good faith to another before he has received notice from the payer of the mistake, a recovery may not be had against such payee.
8. Where, after a payment under mistake of fact, the payee in good faith changes his position so that he no longer has possession of the money or will be in a worse condition if he is required to refund it than if the payer had refused to pay, to such extent the payee is exonerated from repayment.
9. Notwithstanding the negligence of a payee in accepting payment under a mistake of fact, he is entitled to receive reasonably prompt notice of the mistake from the payer so as to enable the payee to enforce whatever rights he may have against other persons to whom he may be entitled to look for reimbursement, and where the payer is negligent in this respect he may be denied a recovery of his money. However, the right of the payer to recover from the payee will not be defeated by any delay in giving notice of the mistake inducing the payment, unless it be shown that the delay resulted in a change of condition or position on the part of the payee.
This action was brought in the Common Pleas Court of Cuyahoga County by The Firestone Tire Rubber Company, hereinafter designated Firestone, againstPage 425the Central National Bank of Cleveland, hereinafter designated bank, for the sum of $25,979.66 paid by the former to the latter under an alleged mistake of fact. The cause was submitted to the trial court on a stipulation of facts.
On or about June 4, 1946, Firestone as purchaser ordered from Stan Wood Products, Inc., of Cleveland, hereinafter designated Stan Wood, a minimum requirement for the year 1946 of 30,000 sleds to be delivered, as directed, to Firestone's stores and warehouses located throughout the United States. Pursuant to such order, Stan Wood was directed by Firestone to ship more than 50,000 sleds to its various stores during the year in question, the sleds to be fabricated at Webberville, Michigan, and from which point the shipments were to be made.
On October 2, 1945, the bank and Stan Wood entered into a loan agreement whereby the former agreed to loan the latter working-capital funds as needed, the borrowing limit being fixed at $10,000. This limit was increased on August 28, 1946, to $20,000 and on November 8, 1946, to $50,000. Loans to Stan Wood under such authorization were to be evidenced by notes of Stan Wood, secured by the pledge of accounts receivable assigned to the bank. This loan agreement was fully executed and consummated prior to any transaction between the bank and Firestone.
On November 5, 1946, Stan Wood borrowed from the bank $10,377.60 and assigned as security therefor its accounts receivable based on invoices Nos. 1867 and 1868 dated November 4, 1946, billing Firestone for 1,100 sleds and 1,250 sleds, respectively, purportedly shipped by Stan Wood to Firestone's warehouse at Minneapolis, Minnesota. Each of these invoices was accompanied by a uniform straight bill of lading purportedlyPage 426issued by a carrier at Webberville, Michigan, showing purported shipments of the sleds to Firestone.
Firestone's claim in this case involves three Stan Wood invoices, the accounts receivable for which Stan Wood assigned to the bank as security for such loans. On November 5, 1946, Stan Wood submitted to the bank its cognovit note, a schedule of assigned accounts and invoices Nos. 1867 and 1868 to Firestone. On November 8, 1946, the bank made another loan to Stan Wood. The same procedure was followed and Stan Wood submitted to the bank invoice No. 1876, purporting to represent a shipment of 2,404 sleds, a schedule of assigned accounts and its cognovit note. Upon the receipt of these papers the bank made a loan to Stan Wood for the amount of the note and returned the invoices, keeping one copy for its files, and bills of lading to Stan Wood which forwarded them to Firestone. Firestone received invoices Nos. 1867 and 1868, accompanied by bills of lading, in Akron on November 8, 1946, and invoice No. 1876, accompanied by bills of lading, on November 12, 1946. Pursuant to such credit arrangement, the bank, between November 4, 1946, and November 9, 1946, advanced to Stan Wood a total sum of $20,993.66 on invoices purporting to cover shipments made to Firestone's warehouses in Minneapolis, Minnesota, and East Cambridge, Massachusetts.
On November 18, 1946, the bank by letter as follows notified Firestone of the assignments to it of the accounts above mentioned:
"This is your notification that the invoices listed below have been assigned to Central National Bank of Cleveland. This is also your notification that any checks in payment of said invoices will be forwarded to Central National Bank of Cleveland, 1612 Euclid Avenue, Cleveland, Ohio.Page 427
"Invoice No. Invoice Date Amount 1876 11-7-46 $13,270.08 1868 11-4-46 6,900.00 1867 11-4-46 6,072.00 1909 11-14-46 11,481.60
"Kindly sign the enclosed copy of this letter and return in attached self-addressed, stamped envelope."
On November 20, 1946, Firestone replied by letter as follows:
"Your letter of the 18th following our telephone conversation has been referred to our voucher department and two things stand out. First, we will need a note from Stanwood Products Company that we are to pay the listed invoices to you rather than direct to them * * *."
Under date of November 21, 1946, Stan Wood wrote Firestone as follows:
"This is to authorize you to make payment, for any merchandise shipped to you by the Stan Wood Products, Inc., to the Central National Bank of Cleveland, 1612 Euclid Ave., attention A.G. Randt, time credit department."
However, before this letter of authorization reached Firestone, its check dated November 21, 1946, and in the sum of $6,831 to cover invoice No. 1868 above mentioned was sent direct to Stan Wood which endorsed and remitted it to the bank where it was credited on Stan Wood's indebtedness. Under date of November 29, 1946, Firestone in reliance upon the genuineness of the purported invoices and bills of lading gave its check to the bank in the sum of $19,148.66 to cover Stan Wood invoices Nos. 1867 and 1876. Of these payments, totalling $25,979.66, the bank, in accordance with its collateral security agreement with Stan Wood,Page 428applied $20,993.66 in payment on its loans to Stan Wood and deposited the remainder of $4,986 to the deposit account of Stan Wood in the bank, which was withdrawn by Stan Wood by December 7, 1946.
All the loans made by the bank to Stan Wood, based on Stan Wood's invoices to Firestone, were made prior to the receipt by the bank of any payments made by Firestone in reliance upon such invoices and bills of lading.
Subsequently, it was discovered by both Firestone and the bank that Stan Wood invoices Nos. 1867, 1868 and 1876 were false and fraudulent. The bills of lading covering such alleged shipments of sleds covered by those invoices were fictitious, and the signature of the contract carrier appearing on each of such bills of lading was either forged or the purported signature of a person who did not exist.
Firestone did not discover that the sleds represented by these invoices had not been shipped, until the latter part of April 1947, at which time it notified the bank that it had not received the sleds for which payment had been made and this was the first knowledge of that fact on the part of the bank. On February 7, 1947, Stan Wood was adjudicated a bankrupt. Firestone filed a proof of claim in the bankruptcy proceeding, setting out the amount paid for merchandise not received. The claim of Firestone against Stan Wood was allowed, but Firestone received no payment therefrom.
In the instant action, a jury was waived and the trial court rendered judgment in favor of the bank.
The Court of Appeals affirmed the judgment as to the amount of the first check paid by Firestone direct to Stan Wood but reversed as to the amount of the second check paid direct to the bank, and rendered final judgment for Firestone in the amount of $19,148.66.Page 429
This cause is in this court on appeal by the bank by reason of the allowance of its motion to certify the record. There is no cross-appeal.
"* * * The bank, by requesting that payment of these invoices be made to it, impliedly, although innocently represented to Firestone that it held, by assignment from Stan Wood, a valid obligation of Firestone, whereas in truth, and in fact, such obligation was false, fictitious and fraudulent. The bank lost no rights against Stan Wood, for all it had was the promise of Stan Wood to pay the loan."
The bank in answer to that statement of the court claims that when a bank, having discounted a bill of exchange with a bill of lading attached, presents it to a buyer for payment, the bank does not warrant the genuineness of the security, and that the bank is a bona fide purchaser for value without notice and, therefore, the general rule of restitution does not apply. In effect, the bank applies this argument to an assignment of accounts receivable.
Since a great variety of factual circumstances enter into the solution of questions relating to the recovery of payments made under mistake of fact, the court must always keep in mind the exact question to be decided in each given case, because a slight change in the facts may make inapplicable well established rules.Page 430
At the outset it will be profitable to describe and define, if possible, the nature and limits of the transaction or transactions involved, so we can properly apply legal rules. There is here involved the use of false invoices accompanied by forged straight bills of lading purporting to cover goods represented by such invoices, and the assignment by a third party, a purported vendor, of purported accounts receivable, arising from a fraudulent transaction, to a bank as security for a loan from the bank, and of a check from the purported vendee to the bank supposedly in payment for the merchandise represented by the invoices. The transaction here, so far as it related to the invoices and the assignment by Stan Wood to the bank of accounts receivable as security, and the execution and delivery of a check from Firestone to the bank, were not governed by the law of negotiable instruments, with the result that neither party enjoys any advantage or immunity as a bona fide holder of a negotiable instrument for value and without notice. However, in the course of this opinion, in order to apply the appropriate legal principles, it will be necessary to refer to and discuss principles and cases relating to negotiable instruments law.
The accounts receivable were not purchased outright by the bank but, as alleged by it in its amended answer, were pledged or assigned to it as security for its loans to Stan Wood with the right to collect the purported debt of Firestone to Stan Wood, supposed to be represented by the invoices, and to apply the proceeds to the debt of Stan Wood to the bank. It paid no money in advance to Stan Wood for the assignment of the accounts receivable and therefore such accounts receivable are held by it only as collateral security for Stan Wood's loan.
Incidentally, the proceeds of the first check of $6,831Page 431paid by Firestone to Stan Wood for invoice No. 1868 and indorsed and paid over to the bank by Stan Wood is no longer in controversy in this case. The Court of Appeals held as to that check, and properly so, that the bank was a holder in due course for value.
In 29 Ohio Jurisprudence, 958, Section 185, it is stated:
"In Ohio, the courts maintain that the word `assign' has a definite and distinct meaning, and a transfer by assignment is quite different from a contract of indorsement. Apparently for this reason the rule in Ohio is that the assignee of a negotiable instrument stands in the shoes of the assignor. He has the same title that the assignor had — no better, no worse — and if the assignor could not recover, neither can the assignee. He is not entitled to the protection given to a bona fide indorsee of notes in due course, who takes them without any knowledge of defects, and therefore is not a holder in due course."
Although there is a conflict of authority on the question whether the original payee of a check may be a holder in due course, the better rule supported by sound legal theory is that such payee can not be a bona fide holder in due course. In other words, where the payment is made by the obligor's check directly to the original payee and such check does not pass through the hands of an intermediary, such payee is not a bona fide holder thereof in due course. As one writer puts it, "while the instrument is still in the hands of the original payee, the `courier' has not started on its career without luggage." Practically all the courts agree that to be such a holder, the payee must become such by negotiation, and the better view is that the term, "negotiation," means a transfer of the instrument from the original payee. 8 American Jurisprudence, 112, Section 376;United Statesv.HillPage 432(Ohio),57 F. Supp., 934;Builders Lime Cement Co.v.Weimer,170 Iowa 444,151 N.W. 100, Ann. Cas. 1917C, 1174;Williamsonv.Payne,300 Ky. 161,188 S.W.2d 96;Gannonv.Bronston,246 Ky. 612,55 S.W.2d 358, 86 A.L.R., 324;Longv.Mason,273 Mo., 266,200 S.W. 1062;First Nat. Bankv.Larson,53 S.D. 262,220 N.W. 506, 68 A.L.R., 940; annotations, 15 A.L.R., 437, 21 A.L.R., 1365, 26 A.L.R., 769, 32 A.L.R., 289, 68 A.L.R., 962, 97 A.L.R., 1215, 142 A.L.R., 489, and 169 A.L.R., 1455.
It seems clear to the court that the check made and delivered by Firestone to the bank for the purpose of paying for the purported invoices held by the bank was "issued" direct to the bank and was not "negotiated" to it, so that it is not with reference to the check "a holder in due course." See Sections 8135 and 8157, General Code. As to this check, no third party was in any respect involved. One reason for the rule that the original payee of a check is not a holder in due course is that, having dealt directly with the payer, such payee has full knowledge of the facts giving rise to the cause of action.
This is not a case of negotiable paper transferred to a bank for collection or for discount, but an assignment of fictitious accounts receivable as security for a loan by the bank, supported by false invoices and forged straight bills of lading which are in form nonnegotiable, nor is it a case where a bank mistakingly bought or discounted a forged negotiable instrument. In such cases the law holds that the drawee must know the signature of the drawer and pays it at its peril.
The alleged negligence of Firestone, in paying the money to the bank before it (Firestone) had checked on the claimed shipment to it of sleds by Stan Wood, in failing to discover the fraud, and in failing to give notice thereof to the bank within a reasonable time, as a defense in this action, will hereinafter be discussed.Page 433
In this action Firestone seeks to recover the money paid by it directly to the bank under the mistaken supposition that it (Firestone) was indebted to Stan Wood which had assigned the fictitious credit due it to the bank. The general rule is, subject to exceptions hereinafter noted, that money paid under the mistaken supposition of the existence of a specific fact which would entitle the payee to the money, which money would not have been paid had it been known to the payer that the fact did not exist, may be recovered.Ellis Mortonv.Ohio Life Ins.Trust Co.,4 Ohio St. 628,662, 64 Am. Dec., 610.
Where money is paid by mistake, neither party being in fault, the party paying the money may recover it as money paid without consideration and, therefore, had any received by the payee to the use of the payer.Espyv.Bank of Cincinnati, 18 Wall., 604,21 L. Ed., 947;Meyerv.Richards,163 U.S. 385,406,410,41 L. Ed., 199,16 S. Ct., 1148.
It is the general rule "that money paid to another under the influence of a mistake of fact, that is, on the mistaken supposition of the existence of a specific fact which would entitle the other to the money, which would not have been paid if it had been known to the payer that the fact was otherwise, may be recovered, provided the payment has not caused such a change in the position of the payee that it would be unjust to require a refund." 40 American Jurisprudence, 844, Section 187.
"* * * in the absence of a change of position upon the part of the payee [Smithv.Rubel,140 Ore., 422,13 P.2d 1078, 87 A.L.R., 644], the failure of one paying money to another under a mistake of fact to use ordinary care to avoid such mistake will not defeat his right to recover it back in an action for money had and received." 40 American Jurisprudence, 848, 852, Sections 194, 201, and cases cited.Page 434
However, this general rule is modified in certain cases to conform to equitable principles which must be applied.
"The generally accepted test which determines whether a recovery may be had is whether the defendant, in equity and good conscience, is entitled to retain the money to which the plaintiff asserts claim."Smithv.Rubel, supra.
The fact that one to whom money was paid by mistake used no deceit or unfairness in obtaining it, but acted in good faith, will not preclude recovery in an action for money had and received.Smithv.Rubel, supra; Grand Lodgev.Towne,136 Minn. 72,161 N.W. 403,405, L.R.A., 1917E, 344. In the latter case the court said:
"Defendant through mistake, obtained possession of plaintiff's money. There was both a plain mutual mistake, and a want or failure of consideration. It is entirely immaterial that defendant honestly believed he was entitled to the money, or that he was guilty of no fraud or duress in obtaining possession of it. * * * The test is whether defendant has a right to retain the money, not whether he acquired possession honestly or in good faith. If the money belongs to plaintiff and defendant can show no legal or equitable right to retain it, he ought in equity and good conscience, to pay it over."
"Recovery back of payments made under mistake of fact is not, as a matter of law, defeated by the failure of the payer to exercise ordinary care to avoid the mistake, but his negligence is a relevant factor in determining whether it is equitable to allow recovery." Annotation, 169 A.L.R., 1427; Restatement of the Law of Restitution, Sections 15 and 16.
We next consider what the responsibilities of the payee are toward the payer where the former obtains payment under a mistake of fact, the failure to meetPage 435which will estop him to make defenses against a claim of the payer for repayment. In general, the same necessities of business which require the drawee or payer to know the signature of the drawer or the obligation to make the payment require the one who originates a purported obligation to take the proper precautions to learn whether the purported claim or demand which he is presenting to the payer for payment is genuine, and if he, through indifference or negligence, assists, though innocently, in the fraud or mistake which induces the payment, he will not be permitted to retain the proceeds of the payment made by the payer whose sole fault was that he did not discover the fraud or mistake before the payment was made.Ellis Mortonv.Ohio LifeIns. Trust Co., supra; Farmers National Bankv.Farmers TradeBank,159 Ky. 141,166 S.W. 986, L.R.A., 1915A, 77;FirstNational Bankv.First National Bank,151 Mass. 280,24 N.E. 44, 21 Am. St. Rep., 450;First National Bankv.State Bank,22 Neb. 769,36 N.W. 289, 3 Am. St. Rep., 294. See 62 Yale Law Journal, 417, 438.
A typical case isNewberry Savings Bankv.Bank of Columbia,91 S.C. 294,298, where the payee of a forged check cashed it for a stranger without any attempt to identify him and impliedly represented to the drawee that it was genuine. The drawee upon discovery of the forgery brought suit to recover the money paid.
The court said:
"The person or bank to whom the money is paid, in such circumstances, receives the money of another on the faith of an untrue representation that he has dealt with and received the check from the person whose name is signed to it. The rule that a bank should know the signature of its customers is not available to one who represents to the bank that he holds in his hand the check of the customer, without havingPage 436taken precautions to ascertain the identity of the person with whom he was dealing. The law is thus stated inFordv.PeoplesBank,74 S.C. 180,54 S.E. 204, 10 L.R.A. (N.S.), 63n, quoting fromNational Bankv.Bangs,106 Mass. 441: `To entitle the holder to retain money obtained by a forgery, he should be able to maintain that the whole responsibility of determining the validity of the signature was placed upon the drawee and that the negligence of the drawee was not lessened and that he was not lulled into a false security by any disregard of duty on his (the holder's) own part, or by the failure of any precaution from which his implied assertion in presenting the check as a sufficient voucher the drawee had a right to believe he had taken.' This case is much stronger in favor of the drawee bank than theFord case, for there the bank which received the money did not take the draft from the person who signed it, but from an indorsee in the usual course of business." SeeFirst NationalBankv.Brule National Bank,38 S.D. 396,161 N.W. 616, 12 A.L.R., 1079; annotations, 12 A.L.R., 1098, and 121 A.L.R., 1058.
To entitle the one to whom payment is made to retain as against the drawee the amount received, he must be able to show that the whole responsibility of determining the validity of the signature was upon the drawee, and that the negligence of such drawee was not lessened by any disregard of duty on the part of the holder, or by failure of any precaution which, from his implied assertion in presenting the check as a sufficient voucher, the drawee had the right to believe the holder had taken.Ellis Mortonv.OhioLife Ins. Trust Co., supra; Ford Co.v.People's Bank ofOrangeburg, supra; First National Bankv.First National Bank,supra; American Express Co.v.State Natl. Bank,27 Okla. 824,Page 437113 P. 711, 33 L.R.A. (N.S.), 188;Canadian Bank of Commercev.Bingham,30 Wn. 484,71 P. 43;P. H. Finance Co.v.FirstState Bank,185 Okla. 558,94 P.2d 894.
The court, in theEllis Morton case, said:
"To entitle the holder to retain money obtained by mistake upon a forged instrument, he must occupy the vantage ground, by putting the drawee alone in the wrong; and he must be able truthfully to assert that he put the whole responsibility upon the drawee, and relied upon him to decide, and that the mistake arising from his negligence can not now be corrected without placing the holder in a worse position than though payment had been refused. If the holder can not say this, and especially if the failure to detect the forgery, and consequent loss, can be traced to his own disregard of duty, in negligently omitting to exercise some precaution which he had undertaken to perform, he fails to establish a superior equity to the money, and can not with a good conscience retain it. To allow him to do so, would be to permit him to take advantage of his own wrong, and to pervert a rule, designed for his protection against the negligence of the drawee, into one for doing injustice to him."
Another rule which frequently enters into cases involving the recovery of payment made through mistake of fact and which frequently determines the end result of such cases is that if a payee receiving payment under a mistake of fact has, in good faith, changed his position or disbursed the money to another before he has received notice from the payer of the fraud or mistake, a recovery may not be had against him.Ellis Mortonv.Ohio Life Ins. Trust Co., supra.See 12 A.L.R., 1105. Money paid under a mistake of fact can not be recovered back where the payment has caused such a change of position of thePage 438payee that it would be unjust to require him to refund it.Hibbsv.First National Bank,133 Va. 94,112 S.E. 669, 25 A.L.R., 120.
If, in a payer's action against the payee to recover money paid through mistake of fact, it is shown that after the payment the payee in good faith changed his position so that he no longer has possession of the money or would be in a worse position if he was required to refund it than of the payer had refused to pay the demand, to such extent the payee is exonerated from repayment.
These rules as between the payer and payee, as they relate to the care and good faith of each, are subject to another rule affecting the right of the payer to recover, dependent upon the situation of the payee arising after the payment is made because of a failure on the part of the payer to promptly notify the payee of the fraud or mistake which induced the payment. Even where negligence on the part of the one receiving the proceeds has been established so as to entitle the payer to recover the proceeds, conduct of the payer may again intervene to prevent recovery. Notwithstanding the negligence of a payee in receiving payment under a mistake of fact, he is entitled to receive reasonably prompt notice of the fraud or mistake from the payer so as to enable him to enforce whatever rights he may have against other persons to whom he may be entitled to look for reimbursement, and if the payer is negligent in this respect he may be denied a recovery of his money. See 12 A.L.R., 1108. Whether there was such unreasonable delay in giving notice is ordinarily a question of fact for the jury.
However, the right of the payer to recover from the payee will not be defeated by any delay in giving notice of the fraud or mistake inducing the payment, unless it is shown that the delay resulted in a change of conditionPage 439or position upon the part of the payee. SeeFirst State BankTrust Co.v.First Natl. Bank,314 Ill. 269,145 N.E. 382.
An examination of the cases will show that in all the well considered adjudications, recognition, tacit or implied, is given to these principles. Their ultimate analysis amounts to this: A payer, even if negligent in making payment under a mistake of fact, may recover if his act has not resulted in a change in the position of the innocent payee to his detriment.
Applying these principles to the facts of the instant case, it is proper to first inquire as to what extent, if any, the payment by Firestone was made as a result of its own negligence and whether such negligence, if any, would preclude recovery.
Firestone made the payment in advance of the delivery of the sleds to it without knowing, as a matter of fact, whether it was indebted to Stan Wood or to Stan Wood's assignee, the bank, for the sleds. The undisputed evidence is that the prompt payment for invoices by Firestone before the receipt of merchandise by it was a regular practice in the business of that company, required by its suppliers of merchandise and was done also for the purpose of taking advantage of discounts. Firestone knew that Stan Wood was under contract to furnish it sleds, and that it would be indebted to Stan Wood for sleds when manufactured and delivered, but Firestone was charged with no duty to detect the forgery of the bills of lading delivered to it, at least indirectly, by its payee, the bank. On this phase of the case, it is sufficient to suggest that the bank was in no position to complain of the prompt payment for the invoices, in view of the fact that such payment was made to it at its demand upon the same information which was available to Firestone. Under the circumstances, this court takes the view that FirestonePage 440was not guilty of any negligence which would preclude its recovery on this ground.
On the other hand, the bank clearly induced the mistake. Even though the delivery of the bills of lading to Firestone did not warrant that they were genuine, such delivery was a representation that these papers were on their face all they purported to be and was for the purpose of inducing payment. The letter which the bank wrote to Firestone directing the latter to pay it instead of Stan Wood was an implied representation that Stan Wood had delivered goods in transit to Firestone and that there was a bona fide indebtedness of Firestone to the bank as assignee, which, it is agreed, induced Firestone to make the payment. Furthermore, the bank by letter requested Stan Wood to write Firestone directing it to pay the bank instead of Stan Wood, and thereby caused Stan Wood to make a similar representation to Firestone.
Although there was a duty upon both Firestone and the bank to avoid mistake in the payment, the greater responsibility in this regard was upon the bank which dealt with Stan Wood as its financial customer and which delivered his forged bills of lading to Firestone, which up to that time knew nothing of the state of its indebtedness, if any, to Stan Wood. The bank by such delivery made a false representation to Firestone of a material fact, although it was ignorant of its falsity. Under such circumstances there is a clear basis for recovery of the money paid under mistake of fact.
The next question is whether there was such change of position on the part of the bank as to preclude recovery of the money paid. Does the bank still enjoy the benefit of the payment or is it left in worse position than if payment had been refused?
The Court of Appeals held that Firestone was entitled to recover from the bank the full amount of thePage 441latter's check to the former dated November 29, 1946, and in the sum of $19,148.66. The undisputed testimony is that the bank applied approximately 80 per cent of that amount or $15,473.66 to its Stan Wood loans and the balance of $3,675 to the deposit account of Stan Wood in the bank, which money so deposited was withdrawn by Stan Wood December 7, 1946. This court is of the opinion that the position of the bank was changed before the discovery of the mistake by the amount of the deposit to Stan Wood's account and so withdrawn by him, so that the judgment against the bank in this case should be modified and entered for the sum of $15,473.66 and interest from the date of payment. The bank, in applying that amount to its loans, is in no worse condition than it would have been if the payment had been refused.
The bank makes the claim that Firestone negligently failed to notify it until April 30, 1947, that Firestone had not received the sleds for which payment had been made, and by reason of such delay the bank was deprived of its rights in pursuing Stan Wood and recovering from it its loss. Although this defense was made in the amended answer, the bank offered no evidence that Stan Wood was solvent during the period between the date of payment and the date of such notification, or that the bank could have in any manner recovered its loss from Stan Wood except for such delay, an issue as to which the burden was upon the bank. It does appear from the record that Stan Wood was adjudicated a bankrupt on February 7, 1947, which fact remitted the bank, from that date, to recover from the estate, and that no dividend was paid to unsecured creditors.
From the state of the record on this issue, we decide that Firestone was not precluded from recovery because of this alleged defense.Page 442
The judgment of the Court of Appeals is modified, and, as modified, is affirmed.Judgment modified and, as modified, affirmed.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN and STEWART, JJ., concur.
TAFT, J., not participating.