The plaintiff bank sues Plotkin on a check for $6,038 payable to the order of "Arthur Plotkin" and bearing on its back the stamp "Creative Travel, Inc. for deposit only in 5-250," above the handwritten signature "Arthur Plotkin." The check was deposited in the account of Creative Travel, Inc. (the corporation), and was later
The action was brought in the Municipal Court of the City of Boston and was removed to the Superior Court. Then it was transferred to the Municipal Court of the City of Boston under G.L.c. 231, § 102C, for trial. The corporation was added as a defendant and defaulted, and after hearing there was a finding against Plotkin in the amount of the check. On retransfer to the Superior Court summary judgment was entered for the bank against Plotkin, and Plotkin appealed to the Appeals Court. We transferred the case here on our own motion.
The following facts appear without dispute from the parties' affidavits and the exhibits. Plotkin was president and treasurer of the corporation, which had provided services to a business in which Sumner Boches and Frank J. Griesing had interests. In payment for those services Boches issued his personal check dated March 24, 1973, for $6,038 payable to the order of the corporation. That check was deposited in the corporation's account, but was returned for insufficient funds on April 2, 1973. Later Griesing issued the check sued on, dated April 13, 1973, in the same amount payable to the order of Arthur Plotkin. Plotkin deposited it in the same corporate account on April 17, 1973, but it was returned for insufficient funds on April 26, 1973. At Plotkin's request it was redeposited on April 30, but it was again dishonored and charged back to the corporation's account. The resulting overdraft exceeded the amount of the check.
Plotkin's affidavit also states the following. A named vice-president of the plaintiff bank "well knew" that the check in suit was issued in place of the deficient Boches's check and was deposited in the corporation's account. The check in suit was returned for insufficient funds "only after Defendant had been advised by plaintiff bank that
The principal issue argued to us is whether the signature "Arthur Plotkin" on the back of the check was an individual indorsement or was made in a representative capacity. Plotkin claims that the case is within § 3-403 (2) (b): "(2) An authorized representative who signs his own name to an instrument... (b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity,...." He and the bank, as indorser and indorsee, are "immediate parties," he says. The burden is on him to disprove personal liability. Carleton Ford, Inc. v. Oste, 1 Mass.App.Ct. 819, 819-820 (1973). Cf. Universal Lightning Rod, Inc. v. Rischall Elec. Co., 24 Conn.Sup. 399, 401 (Cir. Ct. 1963). But, he argues, he is entitled to a trial of the issue under Mass. R. Civ. P. 56 (e), which requires that he "set forth specific facts showing that there is a genuine issue for trial." See Community Nat'l Bank v. Dawes, 369 Mass. 550, 556 (1976).
For the purposes of the present case, we accept this part of Plotkin's analysis, but we point out that there are a number of difficulties with it. First, § 3-403 (2) seems to be directed to the obligations of the original parties to an instrument rather than to indorsements placed on the instrument after it is completed, since the section refers
There are further complications. If the check at the time of deposit bore only one indorsement, that of the corporation, the indorsement of the payee was missing, and the check could have been returned by the drawee bank without dishonor. §§ 3-411 (3), 3-507 (3). The missing indorsement could not be supplied under § 4-205 (1) unless Plotkin rather than the corporation was "the customer." "Unless otherwise agreed," however, § 3-201 (3) would give the bank of deposit, once it gave value by permitting withdrawals, "the specifically enforceable right to have the unqualified indorsement" of Plotkin as "transferor." On the other hand, if Plotkin had first transferred the check to the corporation without indorsement, and the corporation then transferred it to the bank by indorsement, Plotkin was not one of "the immediate parties" to the indorsement transaction within § 3-403 (2) (b).
We pass these difficulties because on Plotkin's analysis we think he has not met the requirements of Rule 56 (e). He is competent to testify as to his own intent, and his affidavit sufficiently shows that he did not intend to be personally obligated. Cf. Lunn & Sweet Co. v. Wolfman, 268 Mass. 345, 353 (1929). But that case was "not an instance of attempting to bind the other party to a contract by undisclosed purposes or secret designs." Ibid. Plotkin's
According to Plotkin's affidavit, he issued checks against the account of the corporation as a consequence of advice by the bank that the Griesing check had cleared. He argues that any loss to the bank was caused by the bank's negligence and that he is therefore not liable, citing §§ 3-502 and 3-601 (2). The affidavit makes no reference to deficiency in presentment or notice of dishonor. His reliance to his detriment on a misrepresentation by the bank might give rise to a defense in the nature of estoppel, but his affidavit makes no showing of any such detriment.