SELLE. (2 Ala. App. 342) (Appellate Court of Alabama. Nov. 14, 1911. Rehearing Denied Dec. 14, 1911.) with custom, by appellant upon the delivery of the cotton at Pensacola was intended by RUSSELL v. FIRST NAT. BANK OF HARTany of the parties to in any way alter the contract which had previously been made. Appellee had no contract with the Saltmarsh for the shipment of the cotton. Appellant 1. BANKS AND BANKING (8_148*)—CHECKS— did have a valid contract with that steamer PAYMENT ON FORGED INDORSEMENT PAYEE. for its shipment, and, having failed to require the Saltmarsh to carry out its contract with it, appellant is not only legally but morally responsible to appellee for the damages resulting to him from the breach of the contract. OF As a general rule, where a check is drawn payable to an actually existing person, and his indorsement thereof is forged, payment by the bank on which it is drawn is not an acquittance. Banking, Cent. Dig. 88 438-452; Dec. Dig. § [Ed. Note.-For other cases, see Banks and 148.*] The judgment of the court below is af-2. BANKS AND BANKING (§ 148*)-CHECKSfirmed. Affirmed. On Application For Rehearing. As there was a judgment in this case against the appellant, we treated, in the above opinion, all the material inferences which could legally be drawn from the evidence in favor of the appellee as established facts. We therefore came to the conclusion that on June 1st the appellee, through his authorized agent in Montgomery, made with the appellant, through its agent in Montgomery, a legal, binding contract with appellant to ship one hundred bales of cotton by the named steamer "Saltmarsh" when it sailed from Pensacola in June. The telegrams were set out in the opinion as evidence of the fact that appellant's agent in Montgomery had the power to make the contract. As was stated by us in the above opinion, "the facts in this case are different from those where a shipper merely delivers goods to a common carrier for shipment to a point beyond its destination through the medium of its connecting carriers in the ordinary course of business," and as we recognized that this contract was one not in the ordinary course of dealings by a railroad with its customers, but one out of such regular course and for which some special authority should be shown in order that the company might thereby be bound, we deemed the telegrams of sufficient importance to set them out in the opinion. [3] It may be, as insisted by appellant in its application for a rehearing, that the expression "B 913" contained in the above telegrams referred to a bill of lading subsequently to be issued, but if so, the evidence, all of which was agreed upon, does not indicate it. A railroad man, reading the telegrams, might so understand it, but a man of ordinary intelligence not acquainted with customs among railroads would not. The ambiguity could have been explained by evidence if the telegrams meant what appellant claims for them, but it failed to offer any evidence on that subject. Barron v. M. & O. R. R. Co., 56 South. 862. The application for a rehearing is overruled. PAYMENT ON FORGED INDORSEMENT OF PAYEE-DILIGENCE. Payment by the bank on which it is drawn of a check with the payee's indorsement forged is not an acquittance, though it also bears the has passed; it having used no diligence to asindorsement of other banks through which it certain whether the payee's indorsement was genuine, and not having shown the other banks had used any. 148.*] [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 438-452; Dec. Dig. § 3. BANKS AND BANKING_(§ 148*)-CHECKSPAYMENT ON FORGED INDORSEMENT - PRESUMPTION. Even if the fact that the indorsement of the same name, living where the bank which the payee of a check was forged by a person of first cashed it was located, could affect the liability to the drawer of the bank on which it was drawn, which subsequently paid it, an indorsement by such person cannot be presumed. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 438-452; Dec. Dig. § 148.*] 4. BANKS AND BANKING (§ 148*)-CHECKSPAYMENT ON FORGED INDORSEMENT - DELIVERY TO ONE AS AGENT OF PAYEE. The rule that, where one, by representing that he is a certain other person, induces another to draw a check in his favor in the name of the person he represents himself to be, the bank on which it is drawn, when indorsed by drawer cannot complain of its payment by the such impostor in the name assumed by him, does not apply where a check, payable to a certain person, is delivered to another on his agent, and is paid on said impostor's forged false representation that he is the payee's indorsement of the payee's name. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 438-452; Dec. Dig. § 148.*] 5. WORDS AND PHRASES-"VOID." and has no effect whatever (citing 8 Words and A "void" thing is, in legal effect, no thing, Phrases, p. 7332). 6. BANKS AND BANKING (§ 154*)-CHECKSPAYMENT ON FORGED INDORSEMENT-ACTION AGAINST BANK-EVIDENCE. delivered to R. a deed of land, F.'s signature to Where H., falsely claiming to be F.'s agent, which as grantor was forged, and received from R. a check, payable to F., the bank on which it that it was liable for payment of the check on was drawn, being sued by R., on the ground the forged indorsement of F.'s name, may not introduce the deed in evidence for comparison of the signature thereto with that of the indorsement of the check; it being immaterial whether or not they are the same. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. § 524; Dec. Dig. § 154.*] 7. Banks and Banking (§ 148*)—CHECKS-¡ man who appears to have been the tax asPAYMENT ON FORGED INDORSEMENT. As regards the liability of the bank on which a check is drawn for paying it on a forged indorsement of the payee's name, it is immaterial that the land, for payment of which the check was given, was worth more than was being paid for it. sessor of Morgan county for a period of six years, resided in Hartselle, and it appears from the evidence that he aided his father in the performance of his duties as such tax assessor. It further appears from the evidence that the father of Claud Harris died while he was the tax assessor of said county, and that Claud Harris acted as such tax asMor-sessor from the time of his father's death until his successor was duly and regularly [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 438-452; Dec. Dig. 148.*] Appeal from Law and Equity Court, gan County; Thomas W. Wert, Judge. Action by T. J. Russell against the First appointed. We gather from the evidence that National Bank of Hartselle, Ala. Judgment for defendant, and plaintiff appeals. Reversed and remanded. Á. J. Harris, for appellant. Tidwell & Sample, for appellee. the transaction out of which this litigation arose either occurred while Claud Harris was in the tax assessor's office, or shortly thereafter. The appellant, desiring to buy the said 160 acres of land, went to the said Claud Harris, DE GRAFFENRIED, J. Frank Framhold and asked him if he knew who owned the Claud is now and has been for the past 21 years a land, and whether it was for sale. resident of Cincinnati, Ohio. During that Harris informed appellant that the land beperiod he has owned 160 acres of land, which longed to Frank Framhold; that it was listis situated near Hartselle, in Morgan county, ed with him for sale for $640, and that Ala., and which appears to be valuable prin- Frank Framhold lived in Birmingham; and cipally for its timber. During the period that if he desired the land he could get it above referred to, no one has been in the at that price. Thereupon appellant told actual occupancy of the land, and Framhold's Harris that he was willing to pay $640 for possession of it was that possession which is the land, and would do so upon the execureferable to his title. So far as the record tion and delivery to him of a good and sufdiscloses, he possesses and has possessed, dur- ficient deed, signed and executed by Frank ing the above period, an unincumbered fee- Framhold, and conveying a fee-simple title simple title to the land. He appears to have to the land. Harris then told appellant that had relatives in Alabama, but seems to have he would go to Birmingham and get the known but little of them, and was himself a deed; and there is evidence tending to show stranger to the people of Morgan county. It that Harris, about that time, went to Birmfurther appears from the evidence that he ingham, and that, in the meantime, appellant had no agent representing him in Morgan had the title investigated, and found, upon county. It seems that it was the custom of investigation, that the title to the land was the tax assessors of that county to annually good in Frank Framhold. It further appears forward to him, at his address in Cincinnati, from the evidence that Claud Harris, who an assessment blank, and upon such blank was then in Hartselle, called appellant up he assessed the lands for taxation, and re- over the telephone, and told him that he turned the assessment to the assessor at had obtained the deed from Frank Framhold, Hartselle. It seems that his taxes were paid and was ready to deliver it to him upon the by him direct to the tax collector, but wheth-payment of the money. Thereupon appellant er by checks or post office orders we do not met the said Harris in the banking house of know. It further appears from the testimony that Framhold had an uncle, who was about 65 years of age, and who resided, certainly for a part of the above period, in different parts of Alabama; and that the name of this uncle was Frank Framhold. There is some evidence tending to show that Frank Framhold, the uncle of the Framhold who owned the land, resided for 5 or 6 years in Birmingham; and it may be that he resided at that place during that period which is covered by the transaction out of which arose this controversy. Frank Framhold, the nephew and the owner of the land, does not seem to have known much of his said uncle, as it appears from the testimony that he had not seen him for 16 or 17 years. | appellee, and Harris exhibited to him a deed, which was regular on its face, and which purported to be signed by Frank Framhold, and which purported to convey to appellant an unincumbered fee-simple title to the said land, and which purported to have been duly witnessed by two witnesses, and to have been duly acknowledged before a notary public in Birmingham, Ala. Claud Harris stated to appellant, at the time he handed appellant the deed, that his commission for making the sale was 10 per cent. and that he desired two checks; one payable to the said Claud Harris for the 10 per cent., and the other to said Frank Framhold. Appellant declined to do this, stating that he knew nothing of the arrangement which had been made between Claud Harris and Frank Framhold, and One Claud Harris, who was the son of a thereupon drew a check in favor of Frank Framhold for $640, and had the appellee to certify the check, and then delivered the check to Harris, to be by him delivered to Frank Framhold. Thereupon appellant took his alleged deed, assumed such possession of the land as it was capable of, assessed it for taxation, and in the fall of the year filed the deed for record in Morgan county, and it was recorded there. The check was, it appears, first negotiated in Birmingham, Ala. It appears to have been indorsed by Frank Framhold, Claud Harris, J. B. Hopkins, the First National Bank of Birmingham, which guaranteed all prior indorsements, and by the People's Savings Bank, which also guaranteed all prior indorsements. It was paid by the appellee upon the faith of the guaranty as to prior indorsements by the above Birmingham banks. The appellee did not know Frank Framhold or his signature, and made no inquiry as to the genuineness of his signature appearing on the back of said check; but it did know the Birmingham banks, knew that they were solvent, and relied exclusively upon their guaranties. About a year after the payment of the check, Frank Framhold came to Hartselle, and appellant then learned, for the first time, that said Frank Framhold had not only not signed the deed, but that he had never heard of it, and that he had not only not indorsed said check, but that he had never heard of it. In other words, appellant then learned, for the first time, that said deed was a forgery, and that said Framhold's signature as the indorser of said check was also a forgery. Thereupon appellant immediately withdrew any claim that he had previously been making to said land on account of said deed, and immediately demanded of appellee the payment of said $640 which it had paid on said check and charged to appellant's account. The appellee refused to pay appellant said sum, and this suit was brought by appellant against appellee for its recovery. [1] 1. As a general rule, where a check is drawn, payable to the order of any actually existing person, if the order or indorsement of such payee is forged, payment by the bank on which it is drawn is not an acquittance. The depositor has directed payment to be made in a certain manner; a payment made otherwise than according to his directions is no discharge of a bank's obligation towards him. A check or bill, payable to order, is authority to the banker only to pay it to the payee, or to a person who becomes the holder by a genuine indorsement. Morse on Banks and Banking, vol. 2 (3d Ed.) § 474. [2] 2. The appellee recognized the above rule, and it undertook to relieve itself of responsibility by claiming that appellant, through his negligence, had enabled the man who committed the forgery to successfully took to show what, if any, diligence was exercised by either of the banks in Birmingham when they received the check to ascertain whether the payee had actually indorsed the check; and it showed, by its own evidence, that it paid the check without any investigation as to the genuineness of the signature of Frank Framhold as an indorser thereof, and that it paid it solely upon the guaranty as to prior indorsements by the banks in Birmingham. It exercised, when it paid the check, no diligence to ascertain whether Framhold's signature on the back of the check was genuine, and it offered no evidence that the Birmingham banks had done so. As was said by the Supreme Court of Michigan, in the case of Judson Harmon, Receiver, v. Old Detroit National Bank, 153 Mich. 73, 116 N. W. 617, 17 L. R. A. (Ñ. S.) 514, 126 Am. St. Rep. 467: "In this case the defendant took no precautions before paying the warrant to ascertain the identity of the payee. It did not show that it paid the warrant to the payee named therein; it evidently relied upon the identification made by the bank in Denver, Colo., where the draft was cashed, and whether that bank took the requisite precaution or not we do not know. It would naturally excite suspicion that a check drawn in Detroit, payable to a corporation in Chicago, on a bank in the distant city of Denver. It was clearly Detroit should be presented to a bank in the duty of the Denver bank to take proper means to assure itself that it was paid to the proper party; in other words, to take proper means to identify the payee. 2 Morse on Banks and Banking, § 466; Ellis v. Ohio Life Ins. & T. Co., 4 Ohio St. 628, 64 Am. Dec. 610. The court, in the case of Ellis v. Ohio Life Ins. & T. Co., supra, said: 'Where the negligence reaches beyond the holder, and necessarily affects the drawee, and consists of an omission to exercise some precaution, either by the agreement of the parties or the course of business devolved upon the holder, in relation to the genuineness of the paper, he cannot in negligent disregard of this duty retain the money obtained upon a forged instrument.' The negligence of the Denver bank is imputable to the defendant." [3] 3. It is contended by appellee that, as there was a man by the name of Frank Framhold, the uncle of the owner of the land, who may have been living in Birmingham, and as he may have been the man who signed the alleged deed, and as he may have been the man who also signed his name on the back of the check, therefore there was evidence before the jury which authorized them to infer that the Birmingham banks received the check upon the genuine indorsement of Frank Framhold, the uncle, under a mistaken belief that he was the real payee of the check; and that therefore there was some evidence predicate a defense on that ground. A sig- which a reasonable conclusion can be drawn nature, with intent to defraud, by another that any bank connected with this transacperson by the same name as the person to tion was misled by an act of negligence or whom a check is drawn is just as much a other fault of appellant, justifying the misforgery as if the names were different. In take which was made in the payment of the this case an intimation by us of an opinion | check. Murphy v. Metropolitan National as to whether the acceptance, by the banks Bank, 191 Mass. 159, 77 N. E. 693, 114 Am. in Birmingham, of the check in good faith St. Rep. 595. from Frank Framhold, the uncle, and the payment of the money to him would or would not, under all the circumstances surrounding the case, furnish appellee with a defense to the suit would be mere dictum. If Frank Framhold, the uncle, indorsed the check, he was guilty, under the undisputed evidence, of forgery, and, as there is no evidence whatever that he did indorse it, we cannot presume that he did so. The pre sumption of the law, on the contrary, is that he did not. It is true that the delivery by appellant of the check to Harris enabled Harris, in person or by the aid of a confederate, to commit a forgery, but appellant had the right, when he delivered Harris the check, to presume that when the check was presented for payment the bank to which it was presented would exercise those precautions with reference to the genuineness of the signature of the payee that the law in such cases requires. This the evidence altogether fails to show. Murphy v. Metropolitan Na[4] 4. There appears in a community oc- tional Bank, supra. The stability of business casionally an impostor-a person assuming requires that when a rule of law is anthe name of some other person, for the pur- nounced it shall be adhered to in all cases pose of imposition or fraud. In such cases, covered by it, although hardships may therethe general rule seems to be that, where the by at times result; for "the known certainimpostor assumes to be, and by such assump-ty of the law is the safety of all." 2 Coke tion induces a drawer of a check to believe upon Littleton, 395a. he is in fact, the person he claims to be, and is by the drawer of the check actually named as payee in the check, then the drawer of the check has no right to complain of the payment of the check by the bank upon which it is drawn, if it was actually indorsed by the impostor, and he received the money. But this rule does not apply ordinarily to a case where the impostor merely assumes to be the agent of the person named as the payee, and not the payee himself; for, while the drawer, by delivering the check to such a person, may be regarded as vouching for him as the agent of the payee, he does not vouch for his right to indorse the payee's Judson Harmon, Receiver, v. Old Detroit National Bank, supra. name. [5, 6] 5. The trial court, against the objection of appellant, permitted appellee to introduce in evidence the alleged deed from Frank Framhold to appellant. As the evidence shows, without dispute, that Frank Framhold never signed the deed, and never acknowledged it before any person, the deed and the acknowledgment were absolutely void. Grider v. American Freehold Mortgage Co., 99 Ala. 291, 12 South. 775, 42 Am. St. Rep. 58; Chattanooga N. B. & L. Association v. Vaught, 143 Ala. 389, 39 South. 215. A void thing is, in legal effect, no thing, and has no effect whatever. Words and Phrases, vol. 8, p. 7332. We are therefore of the opinion that the court erred in permitting appellee to introduce the said deed in evidence. It was admitted in evidence by the court for the purpose of permitting a com "Frank Framhold" on the back of the check and to the signature to the deed; but we cannot, as we have above stated, see how this comparison, whether favorable or unfavorable, could have been of any legitimate service to the jury in determining any of the legitimate inquiries in the case. The check was delivered to Harris for Frank Framhold, the owner of the land, to be by Harris delivered to him. It was not deliver In the present case, there was no one, so far as the evidence discloses, in Birmingham or elsewhere who personated Frank Fram-parison of the handwriting of the words hold. The evidence does show that Claud Harris falsely represented himself to be the agent of Frank Framhold, and that he, in person, or by the aid of some confederate, forged Frank Framhold's signature on the back of the check. The fact that he, either in person or with the aid of a confederate, also forged the same name to a deed does not, it seems to us, throw any light upon this case, or in any way help appellee. No banker who handled the check ever saw the sig-ed to him for the purpose of enabling him, nature to the deed, and it cannot be said that the signature to the deed in any way caused the bankers, or any of them, to cash the check. We can see nothing in the facts of this case which takes it without the operation of the well-established rule that a banker on whom a check is drawn must ascertain, at his peril, the identity of the person named through forgery, to commit a fraud upon any person, and there is nothing in the record indicating that it was so done. [7] 6. The trial court also permitted some of the witnesses for appellee to testify that, in their opinion, the 160 acres of land was worth much more than $640. The witnesses who so testified showed by their testimony, in the first place, that they had never been testify, on that account, to its value, and,, was, by the judgment of the court, sentenced in the second place, it mattered not to ap- to the penitentiary. This appeal is prosecutpellee, or any banker into whose hands the ed for the purpose of reversing that judg check came, whether appellant was paying ment. full value. for the land or not. It therefore appears to us that the court below committed error in the trial of this case which was manifestly prejudicial to appellant, and this cause is therefore reversed and remanded. Reversed and remanded. (2 Ala. App. 127) PARKER v. STATE. (Appellate Court of Alabama. Nov. 28, 1911. On application for Rehearing, Dec. 16, 1911.) 1. CRIMINAL LAW (§ 157*)-LIMITATION OF PROSECUTION-COMMENCEMENT OF PROSECU TION. [1] The undisputed evidence shows that the offense for which the defendant was indicted was committed more than three years before the finding of the indictment. The finding of the indictment appears to have been the commencement of the prosecution. The record therefore affirmatively shows that the prosecution was commenced more than three years after the commission of the alleged offense, if it was committed. This offense is one of the felonies covered by section 7346 of the Code of 1907, which provides that: "The prosecution of all felonies, except those provided in the preceding sections, must be commenced within three years next after the commission of the offense." [2] At common law it was necessary to allege in an indictment the time when the offense was committed; and, while our Code Where an assault with intent to rape, which is one of the offenses covered by Code 1907, 7346, providing that prosecution therefor must be commenced within three years after the commission of the offense, was committed has dispensed with that requirement of the more than three years before the finding of the indictment, and the finding of the indictment appears to have been the commencement of the prosecution, a conviction will be reversed on appeal. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 282, 283; Dec. Dig. § 157.*] 2. CRIMINAL LAW (§ 288*) — PLEA - LIMITA TIONS. While the Code has dispensed with the necessity of alleging in an indictment the time of the commission of the offense, where a felony charged is one which is covered by Code 1907, § 7346, providing that the prosecution must be commenced within three years after the commission of the offense, the indictment contains, in legal contemplation, an averment that the crime was committed within such time; and hence defendant is not required to interpose a special plea of limitations. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 660, 661; Dec. Dig. § 288.*]| On Application for Rehearing. 3. CRIMINAL LAW (§ 157*)-LIMITATION OF PROSECUTION COMMENCEMENT OF PROSECU common law, nevertheless an indictment for a felony, for which our statutes provide a certain fixed period within which a prosecution must be commenced, in legal contemplation, contains an allegation that the offense was committed within that period. In a prosecution for assault with intent to rape, the indictment, in legal contemplation, contains an averment that the offense was committed within three years before the finding of the indictment. It is therefore not necessary for a defendant in a criminal case to specially plead the statute of limitations. If the evidence fails to disclose that the offense was committed within the period which the law provides for the commencement of the prosecution, the case against him falls to the ground, and he is entitled to his discharge. Clarke's Manual, § 2180; Lyon v. State, 61 Ala. 224. The defendant therefore was entitled to the general affirmative charge, which he requested the court in writing to give to the jury in his behalf. Reversed and remanded. On Application for Rehearing. A motion is made on behalf of the state to this court to set aside the judgment heretofore rendered by it in this cause, and restore the cause to the docket, in order that a correct copy of the judgment entry of the court below, of date November 30, 1909, may be obtained and made a part of this record. This application shows that on November 30, 1909, the court below made the following order in the case of the State of Alabama v. Jim Parker: "On motion of solicitor, the indictment in this cause is hereby quashed. on the ground that it was found at an illegal term of the court, and it is ordered that the defendant be held for an assault with intent |