This action was brought to recover an overdraft in a checking account maintained in the plaintiff bank by the defendants John D. Lodge and his wife. By way of special defense, the defendants claimed that the overdraft was caused by the plaintiff's negligence in honoring checks bearing the forged signature of Mrs. Lodge and in honoring a forged letter of instructions concerning the mailing of the defendants' bank statements. The forgeries were perpetrated by an employee of the defendants who admittedly had planned the manipulation of the bank statements and checks to defraud the defendants and later pleaded guilty to forgery. From a judgment rendered in favor of the plaintiff bank, the defendants have appealed.
The first two assignments of error relate (1) to the failure of the trial court to find certain subordinate facts claimed to have been admitted or undisputed and (2) to its finding certain subordinate facts without evidence. The few corrections pursued in their brief to which the defendants have shown themselves entitled are incorporated in the following statement of facts found by the court.
During the time involved here, the defendants maintained with the plaintiff, the Westport Bank and Trust Company, hereinafter called the bank, a joint checking account which was used mainly by Mrs. Lodge for the purpose of paying household bills. The defendants employed as a part-time secretary Miss Dorothy Nye who had worked for them for eight years as a trusted employee and whose duties were to pay bills, to take care of the checking account in question and to balance the
Prior to January, 1967, all statements concerning the defendants' checking account had been sent to the defendants' home, but on or about January 26, 1967, the bank received a notice on the defendants' personal letterhead bearing the printed heading "Villa Lodge, Westport, Connecticut," purportedly signed by Mrs. Lodge and reading: "Until further notice, please send my statements c/o my secretary, Miss Dorothy Nye, P. O. Box 413, Westport, Conn." The bank had on file a signature card signed by both defendants and, at some point of time not disclosed either by the finding or the printed evidence, the signature on the notice appeared to William Vornkahl, an officer of the bank, to be the same as that of Mrs. Lodge on the card. Vornkahl was not, however, a handwriting expert, and in fact Mrs. Lodge's signature on this notice had been forged by Miss Nye. From January, 1967, through June, 1969, statements of the checking account were sent to the defendants in care of Miss Nye at the post office box directed in the notice. During at least twenty-six months of this period, until March or April, 1969, Mrs. Lodge never contacted the bank or any of its officers, and failed to advise them that she had not received a statement for any particular month, although she had knowledge that the statements were being mailed directly to Miss Nye. The records maintained at the bank regarding checking accounts are available to customers so that those who do not receive statements for any particular month can come to the bank and obtain a copy. During the twenty-six-month period from January, 1967, to March, 1969, despite the fact that some notices of
From October, 1968, to June 20, 1969, Miss Nye forged Mrs. Lodge's signature on checks made out to the defendants' housekeeper, Mary Leach, and then forged Mary Leach's signature on the back of the checks and cashed them at a local food store. All of this was unknown to the defendants who saw only bank statements, altered as hereinafter described. At the request of Miss Nye, Mrs. Lodge would deposit additional money in the account when Miss Nye advised her that it was overdrawn. Mrs. Lodge admittedly thought something was wrong "off and on" during the twenty-six-month period, but never went to the bank to raise any questions. Although she was shown overdraft statements during this period, she relied solely upon Miss Nye. The account of the defendants had been overdrawn many times previously and, as a courtesy to the Lodges and to save them embarrassment, the bank had permitted overdraft balances to exist. The frequent overdrafts had been continuously and properly covered with additional deposits by Mrs. Lodge until March, 1969, when she complained to Vornkahl and requested his assistance in reconciling her statement. He met with her but the finding does not disclose what transpired at that meeting or whether she brought the statements with her. In any event, the forgeries were not discovered at that time because
In June, 1969, when the overdrafts continued, Mrs. Lodge again complained to the bank and had another meeting with Vornkahl, at which time, with his help, Mrs. Lodge found checks charged to her account which were not shown on her statements and also discovered erasures and missing checks. Vornkahl also noticed erasures and alterations on the statements which Mrs. Lodge brought to him. At this meeting in June, 1969, Mrs. Lodge indicated for the first time that some of the checks previously cashed and paid by the bank were not signed by her.
On July 22, 1969, the bank, expecting to be reimbursed by its insurer, credited the defendants' account in the amount of $4118, but the insurer, in reliance on § 42a-4-406 (2) (b) of the General Statutes
The first issue raised and briefed by the parties, which presents the question whether the overdrafts actually were caused by the bank's paying checks properly drawn by Mrs. Lodge or by its honoring checks bearing her forged signature, requires no elaboration. The trial court found that the overdrafts resulted when the bank debited the account by the amount of the forgeries for which its insurer had refused reimbursement, a finding which is not contested. It is apparent to us, as it was to the trial court, that the forged checks had caused all but a trifling portion of the overdraft.
The second and third issues raised by the defendants are directed to conclusions reached by the trial court and will be discussed together since they raise the related questions (1) whether the defendants are precluded from asserting the forged signatures of Mrs. Lodge against the plaintiff and (2) whether the defendants are liable for honored checks bearing the forged signature of Mrs. Lodge.
It is the position of the plaintiff that the defendants are precluded by §§ 42a-4-406 and 42a-3-406 of the General Statutes (§§ 4-406 and 3-406 of the Uniform
The defendants argue that the plaintiff failed to prove that the defendants would have discovered the forgeries even if they had examined their statements, citing the fact that even the plaintiff's officer had difficulty identifying them until his second examination of the statements with Mrs. Lodge. The short answer to that is that the forgeries actually were discovered two months after the first joint examination and there is every reason to believe that they would have been discovered and further difficulties prevented had Mrs. Lodge acted more promptly in checking on suspicious circumstances, exercising some kind of reasonable supervision over her employee's conduct or at least insisting upon a personal examination of the statements and cancelled checks after her suspicions had been aroused.
We conclude that there was sufficient evidence before the court to sustain its conclusion that a reasonably prompt and careful examination of the altered statements would have disclosed the forgeries many months before they ultimately were discovered and that the lack of effort on the part of
"The Code makes no provision for cases where a depositor entrusts the examination of his bank statement and cancelled checks to the dishonest employee. It follows that a court considering such a question is likely to follow its own prior law." Brady, Bank Checks (4th Ed.) § 15.25 (g). In the absence of prior Connecticut decisions on this precise point, we have found some support for the position we have taken in General Petroleum Products, Inc. v. Merchants Trust Co., 115 Conn. 50, 59, 160 A. 296, where this court stated: "A bank may escape liability for repayment of amounts paid out on forged checks by establishing that the depositor has been guilty of negligence which contributed to such payments and that it has been free from negligence." Referring to Morgan v. United States Mortgage & Trust Co., 208 N.Y. 218, 224, 101 N.E. 871, the opinion proceeds (p. 61) to quote with approval the following language of the New York court in the Morgan case: "Negligence in this case means the neglect to do those things dictated by ordinary business customs and prudence and fair dealing toward the bank, which if done would have prevented the wrongdoing which resulted from their omission." It then quotes the following from Brady, Forged and
Under § 42a-4-406 (3), the preclusion of the customer from asserting certain defenses against the bank "does not apply if the customer establishes lack of ordinary care on the part of the bank in paying the item." This clearly imposes the burden of proof on the defendants to show lack of ordinary care on the part of the bank in complying with the request to mail statements in care of Miss Nye, as well as in honoring the forged checks. This shift in the burden of proof is explained in comment 4 to § 4-406 of the Uniform Commercial Code, § 42a-4-406 of the General Statutes. 20 Connecticut General Statutes, Annotated (West Ed.) comment 4, pp. 111, 112.
By the same token, the defendants were unable to sustain their burden of proving that the bank failed to use ordinary care in honoring the forged checks. They called no handwriting experts; they failed to introduce legible copies of the forged checks, relying instead on an almost illegible copy of one check introduced by the plaintiff; they failed to produce the signature card used by the bank's bookkeeping department when verifying signatures on checks; and they failed to subpoena the original change of address notice, relying instead on a poor copy which was difficult to compare. Furthermore, the defendants' argument that the act of crediting the account constituted an admission of negligence is without merit because that act, without more support, admits nothing. In summary, we find no error in the conclusions reached by the trial court on the evidence presented to the effect that: (1) the defendants, by their conduct in trusting Miss Nye without checking on her activities and in giving her free and complete access to the checks and statements and thereby placing her in a position to make the forged instruments, failed to exercise reasonable care and were negligent; (2) that the plaintiff sent to the defendants statements of account accompanied by items paid in good faith in support of the debit entries, or otherwise in a reasonable manner made such statements and items available to the defendants within the meaning of § 42a-4-406 (1)
There is no error.
In this opinion the other judges concurred.