
    Elizabeth Shaffer v. Robert McKee.
    A debtor of the plaintiff enclosed and mailed to her a draft on a bank in New York, payable to her order. The draft was stolen from the mail, and the thief, having placed a forged indorsement of the plaintiff’s name thereon, sold the same to the defendant, who drew from the bank, the money, and appropriated to his own use. Held: on this state of facts the plaintiff was entitled to recover the amount of the draft from the defendant.
    
      Error to the court of common pleas of Wyandot county. Reserved in the district court.
    The pleadings in the original action were a petition and a general demurrer thereto.
    The petition, except the prayer for judgment for $100 and interest, is set out in full in the opinion of the court.
    The case was not argued on behalf of the defendant in error.
    
      J. D. & O. Sears for plaintiff in error:
    The court of common pleas sustained this demurrer (as we understand), upon the ground that the petition showed that there was no privity of contract in the premises, except between the plaintiff and the drawee of this bill, and that •her remedy was, consequently, solely against the drawee; and this, we believe, is the only ground that has been urged or suggested against the plaintiff’s right in the present action.
    The plaintiff has had a good cause of action against the drawee of this draft ever since the drawee paid it to the defendant. Graves v. The American Exchange Bank, 17 N. Y. 205; Story on Bills (2d ed.), § 451; Parsons on Bills and Notes, pp. 595, 596, 601.
    Immediately after the plaintiff should recover from the drawee under the circumstances, the drawee would have an undoubted right to recover back from the defendant or from ’ any intermediate indorser from whom the drawee may have received it for value, unless such right were forfeited for laches. 2 Parsons on Bills and Notes, p. 597.
    A multiplicity of suits is always to be avoided when the ends of justice can be as completely obtained by at once proceeding against the responsible party ultimately liable. This rule is clearly recognized, if not made binding, in Taylor v. Huber's Ex'rs, 13 Ohio St. 288.
    No rights or principles could be sacrificed in the present case by sustaining this action against the defendant, who is the responsible party ultimately liable.
    
    
      Upon the theory that the plaintiff’s action must be against the drawee, in case of the very possible contingency of the drawee becoming bankrupt after the intermediate purchaser (as the defendant in this case) purchased the bill, but before the payee could ascertain what had become of it, the payee would be without recourse, and this in consequence of the purchaser’s neglect to do what the law requires of him, i.e., to see that the indorsement was genuine.
    In a case of this kind, as between the party whose care ■ lessness first gives currency to the forgery, and the drawee and intermediate indorsers, the payee has the right to select his defendant; and, in making such selection, he only runs the risk of having to answer for any abuse of the principle which requires the avoidance of a multiplicity of suits. Story on Bills (2d ed.), § 451; Parsons on Bills and Notes, 595, 596, 601.
    But this is substantially what would formerly have been an action of trover; and if the circumstances of the transaction detailed in the petition are such as would formerly have enabled the plaintiff to maintain an action of trover, the petition, is sufficient under the code.
    In Parker v. Norton, 6 D. & E. 695, it was held that the action of trover could be maintained by the plaintiff against a party to whom the plaintiff had sent a bill of exchange before due for collection, and who, in the mean time, collected the same and appropriated the proceeds to his own use.
    The same principle was recently settled in the court of appeals of New York, in the case of Graves v. The American Exchange Bank, 17 N. Y. 205. Not only the principle, but the facts, of this New York case are practically identical with those in the ease at.bar. If the acts of the.drawee in this New York case "amount to a conversion, a fortiori does the conduct of the defendant in regard to the bill in the .present case.
    In trover it makes no difference whether the defendant who converts property in trover did so innocently or not, or whether he is in possession of the property at the time the action is brought, or not. Hoffman et al. v. Carow, 22 Wend. 285; 11 Wend. 80.
    This bill, being payable to the order of the payee, was not even negotiable. It was a personal chattel, and the defendant’s transaction with the party from whom he purchased, made the defendant a purchaser of it from a thief, and, under the authority of the case in 22 Wendell, he is clearly liable to the plaintiff, in trover.
    That trover may be maintained for notes and bills, and that the measure of damages for their conversion is, prima facie, the amount of their face, see further, Sedgwick on Damages, 488; 2 Parsons on Contracts, 471; 1 Pick. 503; 3 Johns. 432; Spraihts v. Hawley, 39 N. Y. 441.
    It is alleged in the.petition that the forged indorsement was made by some person unknown. Practically, therefore, the defendant is the first tangible wrongdoer. The plaintiff had lost her draft, but the loss was susceptible of an easy remedy, had not this defendant found it, and put it into circulation, with his guaranty of the genuineness of the indorsement. From this wrongful and negligent act of his, all the wrong and damage to the plaintiff has arisen. It is his business to look for the incognito who deceived him. If he finds her, so much the better perhaps for him; if not, everybody’s rights are fully adjusted by the present action. It is the defendant alone who has converted the plaintiff’s draft, by asserting an untruth in relation to its indorsement. The American Exchange Bank was bound to know the signature of its correspondent, the drawer of this draft; it was only bound to look to the genuineness of the payee’s signature in case she presented herself in person to demand payment; in every other case that fact is guaranteed by the correspondent who presents the indorsed draft, and in this case we may well assume that the defendant was such correspondent. Now shall McKee be permitted to say: “ I got the money on this draft; collected it of the American Exchange Bank, by asserting the falsehood that you had indorsed it to me: yet you must first sue the bank; my liability is to the bank alone.”
    If this be the law, it is greatly to be regretted. For doubtless, tbe same rule would apply to bills drawn upon San Francisco, London, or Melbourne, which, at this distance from the drawers, could be stolen and converted with absolute impunity. Tbe inconvenience of such a’ rule may well bo urged against its adoption.
    
    
      
       The insertion of this argument, at such length, is at the suggestion of ithe Chief Justice.
    
   Brinkerhoff, O.J.

Tbe plaintiff in error, also plaintiff below, filed in the common pleas the following petition:

“ Plaintiff says, that on or about the 22d day of May, A.D. 1865, at Sunbury, in the State of Pennsylvania, one John Buyers, being then indebted to the plaintiff, at her request procured from the Bank of Northumberland a draft, of which tbe following is a copy:

‘Bank of Northumberland.

• ‘ No. 403, Sunbury, Penna., May 22d, 1865.

‘Cashier of the American Exchange Bank, New York.

‘Pay to tbe order of Elizabeth Shaffer one hundred dollars.

‘ Sam’l J. Packer, Cashier.’

“ $100.

And then and there enclosed the same in a letter, and transmitted the same, properly directed, to the plaintiff, at Upper 'Sandusky, in said county of Wyandot. Plaintiff further ;says that ■ said letter, and the draft enclosed therein, never ■ came to the plaintiff’s possession; but was wrongfully taken from the post-office by some person to the plaintiff unknown, uand without her knowledge or consent; and the person so 'taking the same, on or about the 1st day of June, 1865, falsely and knowingly, and without authority from the plaintiff, and without her knowledge or consent, forged and ■counterfeited an indorsement of plaintiff’s name upon said ■ draft, and by means of such forged and counterfeited indorsement, then and there negotiated the said draft to the . defendant, who collected the same, and now holds the money ■received thereon.

“ Plaintiff has demanded of the defendant the money so 'received by him to her use as aforesaid, but he refused and still refuses to pay over the same or any part thereof.”

Held: On the facts averred in the petition the plaintiff was entitled to a judgment in her favor, and the court below erred in sustaining the demurrer to the petition.

Judgment reversed and cause remanded.

Scott, Welch, White, and Day, JJ., concurred.  