BANK OF MIAMI BEACH, APPELLANT,

v.

NATHAN NEWMAN, APPELLEE

Fla. 3d DCA | 1964-04-07

No. 63-504

Before HORTON, TILLMAN PEARSON and HENDRY, JJ.

163 So. 2d 333 Florida District Court of Appeal, Third District (1964) Positive Treatment

Cited by 5 cases

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Synopsis

A bank is liable to a depositor for charging the drawer's account after paying a check with a forged indorsement, as the complaint need not specifically allege damages.

Holding

A bank is liable to a depositor for paying a check with a forged indorsement, and the drawer's complaint need not specifically allege damages.

Facts & Procedural History

A bank paid a check with a forged indorsement and charged the drawer's account. The drawer's complaint sufficiently pleaded a breach of the deposit co…

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Topics

Forged Indorsement Failure To State A Cause Of Action Damages Estoppel

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Opinion of the Court

HENDRY, Judge.

Defendant appeals a summary final judgment entered against it by one of the judges of the Civil Court of Record for Dade County, Florida.

The appellee is a depositor in the appellant-bank. Appellee drew a check on the appellant-bank, payable to “Samuel Ross and Frances Ross”. Samuel Ross took that check, signed his wife’s (Frances’) name to the check, and had appellant cash it. Appellee instituted the instant action against the bank for paying the check based on a forged indorsement of the wife, one of the joint payees. The trial court granted appellee summary judgment against the bank for the face amount of the check.

Appellant, inter alia, claims error on the part of the trial court, in that, it denied appellant’s motion to dismiss the amended complaint for failure to state a cause of action. We agree.

Appellee instituted this action against the bank, but nowhere does the amended complaint allege any loss sustained. There is no statement to the effect that the debt, for which the check was given, was not collected.

It is fundamental that a person is not entitled to recover damages if he has suffered no injury.1 Appellee’s amended complaint does not in any way allege an unsuccessful attempt to collect the debt. Insofar as the record shows, appellee could have already discounted the note, and be recovering twice. The appellee’s failure to allege that he has been damaged by the bank’s act renders the amended complaint subject to dismissal.2

In view of the above we do not reach nor decide the other questions raised in the briefs.

Accordingly, the judgment appealed is reversed and remanded to the trial court for the entry of an order dismissing the *334amended complaint, without prejudice, for failure to state a cause of action.

Reversed and remanded.

TILLMAN PEARSON, Judge

(dissenting).

In this case the defendant-bank made payment on a check with a forged indorsement and charged the drawer’s account. The plaintiff-drawer’s complaint sufficiently pleaded facts necessary to comply with the rule set forth below in showing a breach of the deposit contract by the defendant. It was not necessary that the drawer specifically include in the complaint that she was damaged by the drawee-bank’s action.

A checking account created by a general deposit of funds with a bank raises by implication a contract whereby the bank, upon proper demand, will pay the funds in the deposit to such persons as the depositor directs. See McCrory Stores Corp. v. Tun-nicliffe, 104 Fla. 683, 140 So. 806. It is the duty of the drawee bank to pay a check only to the person to whom the depositor directs payments to be made. Miami Beach First National Bank v. Edgerly, Fla.1960, 121 So.2d 417, 82 A.L.R.2d 927.

The primary responsibility is upon the bank to detect a forgery of a payee’s signature. A bank paying a check upon the unauthorized indorsement of the payee becomes liable to the depositor. Edgerly v. Schuyler, Fla.App.1959, 113 So.2d 737. The drawee bank may not charge the drawer’s account with the amount of a check paid on a forged indorsement unless the drawer was guilty of some negligence or conduct creating an estoppel as a consequence of which the improper payment resulted. Lewis State Bank v. Raker, 138 Fla. 227, 189 So. 227. See also : 4 Fla.Jur., Banks and Trust Companies, § 71 (1955); 10 Am.Jur.2d Banks, § 623 (1963).

Generally, in an action based on contract, all that the complaint is required to state is the making of the contract, the obligation thereby assumed, and the breach. The complaint is complete when these statements are supplemented with a statement of the amount claimed in a prayer for relief. Cerniglia v. Davison Chemical Co., Fla. App.1962, 145 So.2d 254; 25 Fla.Jur., Pleadings, § 55 (1959).

I would affirm.

Dissent

TILLMAN PEARSON, Judge

(dissenting).

The primary responsibility is upon the bank to detect a forgery of a payee’s signature. A bank paying a check upon the unauthorized indorsement of the payee becomes liable to the depositor. Edgerly v. Schuyler, Fla.App.1959, 113 So. 2d 737. The drawee bank may not charge the drawer’s account with the amount of a check paid on a forged indorsement unless the drawer was guilty of some negligence or conduct creating an estoppel as a consequence of which the improper payment resulted. Lewis State Bank v. Raker, 138 Fla. 227, 189 So. 227. See also : 4 Fla.Jur., Banks and Trust Companies, § 71 (1955); 10 Am.Jur.2d Banks, § 623 (1963).

I would affirm.

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Citator

Cited By

Regions Bank v. Maroone Chevrolet, L.L.C., 118 So. 3d 251 (Fla. 3d DCA 2013)

…these cars. Therefore, the full amount of $406,070.85 remained owing from this order. It is axiomatic that a plaintiff must prove damages resulting from the defendant’s wrongdoing to be entitled to recover. See, e.g., Bank of Miami Beach v. Neuman, 163 So. 2d 333, 333 (Fla. 3d DCA 1964) (“It is fundamental that a person is not entitled to recover damages if he has suffered no injury.”). To prove a pri-ma facie case of conversion, the plaintiff must show evidence of damage, not just liability. See, e.g., Saew…
Shechter v. R.V. Sales of Broward, Inc., 328 So. 3d 1053 (Fla. 3d DCA 2021)

…Regions Bank v. Maroone Chevrolet, L.L.C., 118 So. 3d 251, 257 (Fla. 3d DCA 2013) (holding: “It is axiomatic that a plaintiff must prove damages resulting from the defendant’s wrongdoing to be entitled to recover”); Bank of Miami Beach v. Newman, 163 So. 2d 333, 333 (Fla. 3d DCA 1964) (noting: “It is fundamental that a person is not entitled to recover damages if he has suffered no injury”). The RV Dealers sold the RV for $22,000. The Receiver failed to present competent substantial evidence that the R…
First Nat'l Bank OF Melbourne v. Sogaard & Debo, Inc., 406 F.2d 1128 (5th Cir. 1969)

…to- Company. To this extent at least, the Bank argues, the Company should not be allowed to- recover because no damage or loss- was sustained. Florida National Bank at St. Petersburg v. Greer, 96 So. 2d 409 (Fla.1957); Bank of Miami Beach v. Newman, 163 So. 2d 333 (Fla.App.1964). The burden of proving that checks paid on forged signatures were for legitimate business expenses, of course, was upon Bank. Clearly there was evidence to support the jury’s finding that this burden was not met. While apparently th…

Authorities Cited

McCrory Stores Corp. v. Tunnicliffe, 104 Fla. 683 (Fla. 1932)
Miami Beach First Nat'l Bank v. Edgerly, 121 So. 2d 417 (Fla. 1960)
Edgerly v. Schuyler, 113 So. 2d 737 (Fla. 3d DCA 1959)
The Lewis State Bank v. Ira B. Raker, 138 Fla. 227 (Fla. 1939)
Salomon v. The Pioneer Co-operative Co., 21 Fla. 374 (Fla. 1885)
Cerniglia v. Davison Chem. Co., 145 So. 2d 254 (Fla. 2d DCA 1962)

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