Fidelity & Casualty Co. v. Constitution National Bank
Fidelity & Casualty Co. v. Constitution National Bank
Opinion of the Court
This action alleging a breach of contract was brought hy The Fidelity and Casualty Company of New York (hereinafter referred to as Fidelity) as subrogee, assignee and successor in interest of a depositor, the Easy Finance Company (hereinafter referred to as the finance company), against the depositor’s hank, Constitution National Bank (hereinafter referred to as the hank). The Court of Common Pleas rendered judgment for Fidelity to recover of the bank $8,678.44, with costs, from which the hank has appealed.
In 1967 the finance company opened a commercial checking account with the hank in which it
During August and September, 1967, the finance company maintained a credit balance in its account with the bank sufficient to pay all checks drawn by the finance company on that account during these months. At that time, Richard C. Bissette, the finance company’s manager, was authorized to sign and issue checks on its behalf.
At various times during August and September, 1967, an automobile dealer in Chicopee Falls, Massachusetts, telephoned in loan applications to the finance company’s office. Douglas McPheters, who at the time was a salesman for a Chicopee Falls automobile dealer, then submitted to the finance company loan applications and promissory notes allegedly signed by nine individuals. The finance company then gave Douglas McPheters contracts, payment books and checks made payable to and to be given to these individuals, in amounts altogether totalling $8,678.44. McPheters had formerly been a salesman in the Hartford area who had helped customers finance purchases through the finance company.
In drawing and issuing the nine checks, the finance company ordered the bank to pay the payees named thereon or to pay in accordance with the order of the named payees. Instead of deliver
On discovering the forgery, the finance company notified Fidelity, on or about October 9, 1967, and then informed the banks through which the checks had passed of the forged endorsements. On October 17 the finance company notified the defendant bank of the forgeries; the bank, however, refused to recredit the finance company’s account in the amount of the nine cheeks ($8,678.44).
Pursuant to the forgery provisions of the small loan companies’ blanket bond it had previously executed, Fidelity paid the finance company’s loss for the nine cheeks in their total amount. By reason of this payment, the finance company specifically assigned all its rights against the defendant bank to Fidelity, which became the subrogee, assignee
The bank has assigned error in several of the trial court’s findings and conclusions involving the application of § 42a-3-406 of the General Statutes (§3-406 of the Uniform Commercial Code), which provides: “Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee’s or payor’s business.” (Emphasis supplied.)
At the outset we note that it has long been established in this state that “[a] conclusion of negligence is ordinarily one of mixed law and fact, involving the determination of the applicable standard of care, which is a question of law, and its application to the. facts of the particular case, which is a question of fact. Faille v. Hollett, 152 Conn. 720, 721, 211 A.2d 701; Marley v. New England Transportation Co., 133 Conn. 586, 591, 53 A.2d 296; see 2 Harper and James, Torts § 15.3, p. 880.” Smith v. Leuthner, 156 Conn. 422, 424, 242 A.2d 728. Neither § 42a-3-406 nor any other part of title 42a of the General Statutes (Uniform Commercial Code) defines “negligence.” Noting this lack of statutory guidance, two commentators on the code have stated that “[t]he acts sufficient ‘sub
To support its claim that Bissette’s conduct on behalf of the finance company constituted negligence within the meaning of § 42a-3-406, the bank introduced evidence that the finance company undertook no credit investigation, which would have revealed that the purported loan applicants had never in fact applied for loans from the finance company. In recent years, courts in other jurisdictions when ruling on the issue of the drawer’s negligence under this section of the code have been inclined to hold that the failure to verify information on reports prior to drawing and issuing checks pursuant thereto amounts to negligent business conduct, either as a matter of fact; Thompson Maple Products, Inc. v. Citizens National Bank, 211
In so holding, the courts have adhered to the principle of construction embodied in the code to the effect that the statute’s provisions should be “liberally construed and applied to promote its underlying purposes and policies”; § 42a-1-102 (1); one of these purposes being “to . . . modernize the law governing commercial transactions.” §42a-1-102 (2) (a). See White & Summers, Uniform Commercial Code §4. (Significantly, such was the attitude adopted by this court in construing the predecessor to the current code, the Uniform Negotiable Instruments Law. Austin, Nichols
The trial court, however, although requested, refused to find as a fact that Bissette, the finance company’s manager, failed to conduct a credit investigation to verify the information on the purported loan applications. “Where the finding fails to include admitted or undisputed facts, this court has the power to correct it. Morrone v. Jose, 153 Conn. 275, 277, 216 A.2d 196; National Broadcasting Co. v. Rose, 153 Conn. 219, 223, 215 A.2d 123.” Brockett v. Jensen, 154 Conn. 328, 330, 225 A.2d 190; Practice Book §628 (a); Malthie, Conn. App. Proc. § 157. An “undisputed” fact is a fact “which the court has not deemed sufficiently material to add to the finding, or has inadvertently omitted from it.” Dexter Yarn Co. v. American Fabrics Co., 102 Conn. 529, 541, 129 A. 527; Black’s Law Dictionary (4th Ed. Rev.) 1697. Elaborating upon this definition, we have stated that “[t]o secure an addition on this ground, it is necessary for an appellant to point to some part of the
In this case, the evidence in question consisted of testimony by Roger Knight, an investigator of the Underwriters Adjusting Company, of which group Fidelity is a member, Fidelity’s own witness, who stated that no credit investigation had been conducted by the finance company. It has been stated that “testimony supporting a fact may be such that the court could not reasonably disbelieve it; thus where the court accepted all the other testimony of a witness, it was held that it could not disregard a statement consistent with that testimony and reasonable.” Maltbie, Conn. App. Proc. § 156; Judd v. Metropolitan Life Ins. Co., 111 Conn. 532, 537, 150 A. 514. Here, the court accepted all of Knight’s other testimony relating to his investigation of the forgery. In light of the foregoing, the finding must be corrected to include the fact that Bissette failed to conduct a credit investigation, a finding which is material to the questions of law presented on the appeal.
The defendant bank has assigned error in the conclusion of the trial court that it failed to meet the burden of proving its special defense that Bissette’s conduct amounted to negligence within the meaning of § 42a-3-406. Such a conclusion must be tested by the finding. Hutensky v. Avon, 163 Conn. 433, 437, 311 A.2d 92. At least four material facts found by the trial court were of
Whether the applications submitted to Bissette by McPheters bore any signatures was of consider
This court has deemed it appropriate in the past to order a new trial where it has appeared that a trial court’s conclusion may have been influenced by an erroneous finding and unsupported by the subordinate facts. Golden v. Lyons, 151 Conn. 21, 25, 27, 193 A.2d 487; see also Providence Electric Co. v. Sutton Place, Inc., supra, 245; Churchward v. Churchward, 132 Conn. 72, 79, 80, 42 A.2d 659. Such a disposition is proper in this ease as well, so that the trial court may correctly determine whether the conduct of Bissette on behalf of the finance company constituted negligence within the meaning of § 42a-3-406 as elucidated herein.
There is error; the judgment is set aside and a new trial is ordered.
In this opinion, Shapiro, Loiselle and Bogdanski, Js., concurred.
In Thompson Maple Prodmcts, a clover nonlog hauler simply forged documents indicating that he had delivered logs to the drawer. The drawer’s bookkeeper then made checks payable to various parties for these fictitious deliveries and the deceitful non-log hauler forged the endorsements of these payees. The drawer itself had failed to follow its own procedure which required that its employee receiving the logs retain one copy of the document which showed the delivery; it had also left blank sets of documents readily accessible; and in effect it had sent the checks back to the purported payees in the hands of the same truckers who had allegedly delivered the logs. The Pennsylvania court held that the conduct exemplified by these facts, “viewed in its entirety,” was sufficient to support a trial court’s finding of negligence within the meaning of § 3-406 of the code. Thompson Maple Products, Inc. v. Citizens National Bank, 211 Pa. Super. 42, 47, 50, 234 A.2d 32.
In Fidelity, the New York court found the “know your customer” rule of the New York Stock Exchange helpful in determining the care owed by drawers of checks under § 3-406 of the Uniform Commercial Code. That rule requires brokers to use due diligence to learn the essential facts relative to their customers. The court held that the failure of a registered representative broker of the plaintiff’s subrogor to attempt to verify the information it had
In Prudential, the District Court held that in an action to recover funds from defendant banks which had paid cheeks drawn by the plaintiff insurance company and on which the payees’ endorsements were forged, the defendant banks’ affirmative defense that the plaintiff in issuing the cheeks and in causing them to be delivered to addresses supplied by its agent was negligent in failing to verify with the policyholders the validity of each policyholder’s loan application and permitting its agent to process false applications, and in hiring as its agent a person with a questionable background, constituted a valid defense under § 3-406 of the Uniform Commercial Code. Prudential Ins. Co. of Am. v. Marine Nat. Exch. Bank, 55 F.R.D. 436, 438 (E.D. Wis.). This was a ruling on a motion by the plaintiff to strike the affirmative defense. By implication, the court indicated that should the defendant banks prove their allegations, the plaintiff would be found to have been negligent and hence precluded from seeking recovery from the banks under § 3-406.
Dissenting Opinion
(dissenting). I am satisfied that the trial court’s finding of fact is fully supported by the evidence and that that finding amply supports its conclusions not only that the defendant failed to sustain the burden of proof as to the allegations of its special defenses but, to the contrary and affirmatively, that the finance company was not negligent in drawing and issuing the cheeks in question and that its conduct did not substantially contribute to or proximately cause the making of the unauthorized endorsements and forgery. I would, accordingly, find no error.
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