
    Peter Cochran v. Robert M. Atchison.
    1. Bill, Indorsed by a Stranger; Inability. Where a stranger to a bill writes his name on the back thereof, regularly following that of the payee, he thereby makes himself an indorser, and assumes all the obligations and liabilities usually assumed by indorsers of negotiable paper.
    2. --- An indorser warrants the genuineness of the indorsements on a hill of exchange, and that he has a valid title to the bill.
    3. Forged Indorsement; Subsequent Indorser. If it be ascertained after the payment of the bill that the indorsement of the payee is forged, or that such indorsement is the signature of a false and spurious payee, the indorser immediately following such forged or spurious signature is liable to his immediate indorsee for the money obtained upon such indorsement, without proof of demand and notice.
    4. Fax.se Indorsement ; Liability of Subsequent Indorser. Where a bill is payable to the order of W. W. Owens, and it comes by mistake into the possession of one W. W. Owen, who wrongfully takes it from the post office, and thereafter the bill is paid by A., the cashier of a bank, upon the false and spurious indorsement of W. W. Owen thereon,- and the written indorsement of C. regularly following that of the false and spurious payee, and A. having indorsed the draft, presents it to the drawee and collects the amount thereof, and thereafter the owner and real payee learns of the disposition of his draft, and demands of A. the proceeds so collected by him of the drawee, and A. pays over to the real payee and owner such proceeds, held, that C., by his contract of indorsement, is liable to A. for the amount of the bill, without demand made and notice, although he was ignorant at the time of his indorsement that Owen was not the actual payee and owner of the bill.
    5. --- Title to Bill. If a bill is payable to the order of a person, and another person of the same name of the payee gets hold of it, and indorses it to a party who takes it in good faith and for value, such party acquires no title to the bill.
    6. Indorser; Guaranty; Idem Sonans. Where a bill is payable to W. W. Owens, and one W. W. Owen gets hold of it and wrongfully indorses it, a subsequent .indorser cannot relieve himself from his liability to his immediate indorsee, on the ground that the latter is guilty of negligence in taking the paper without the name of the actual payee indorsed thereon. In the first place, the indorser guarantees the genuineness of the signature of the payee, and second, the difference in pronunciation between Owen and Owens is so slight as not to amount to a variance. The two names may be taken promiscuously to be the same in common use.
    
      Error from Johnson District Court.
    
    Action by Atchison against Cochran, to recover $151.30 paid to a false and spurious payee of a draft. The essential facts are:
    On the 17th day of November, 1880, the assistant cashier of the First National bank of Pueblo, Colorado, mailed a draft, of which the following is a copy:
    
      “ Colorado —No. 49,009 —Duplipate —Unpaid. First National bank, Pueblo, Nov. 17,1880, pay to the order of W. W. Owens, Esq., one hundred fifty-one and 30-100 dollars in current funds. Robert F. Lytle, Assistant Cashier.
    
    “To bank of Kansas City, Kansas City, Mo. $151.30, ü. S. Int. Rev. 2 cents. To W. W. Owens, at Olathe, Kansas.”
    The letter containing the draft was received at Olathe, and placed by mistake in the post office box of one W. W.. Owen, on the 19th day of November, 1880. On the same day, said Owen wrongfully took the draft from the post office and went to the Johnson County bank at Olathe, presented the draft to Robert M. Atchison, the cashier, and asked to have it cashed. The cashier said to him that he must have some responsible person with whom he was acquainted to identify him.’ He went out and in a'short time returned with Cochran. Mr. Cochran said: “I know this man; his name is Will. Owen.” The cashier then asked Cochran how long he had known the young man, and he replied, about two years; that he had worked for his son-in-law, John Burch, on the farm, and for Mr. Collins and other neighbors, and during that time he had known him as William, or Bill Owen. The cashier told Owen to indorse the draft, and then pushed the draft to Cochran, and he wrote his name just below that of Owen. The cashier then paid the money on the draft, $151, to Owen, and retained thirty cents "for exchange. Owen immediately went out of the bank. The cashier upon investigation indorsed the draft, and sent it to the bank of Kansas City for collection and credit. The draft was promptly paid by that bank upon presentment, and the cashier given credit for the full amount.
    In ten days or two weeks thereafter, W. W. Owens, the owner and the real payee of the draft, was in the Johnson County bank at Olathe, and informed- the cashier that he was expecting some money from Pueblo. The cashier was satisfied that he had paid the money on the draft to the wrong party, and afterward paid the full amount of the draft to the real payee, W. W. Owens. After he had paid the money to Owens, he made a demand upon Cochran for the money paid over to the false and spurious payee, and he refused to pay it, or any part thereof. At the time that the cashier sent the •draft to the bank of Kansas City, the following indorsements were on the back: “ W. W. Owen, Peter Cochran, and credit. —R. M. Atchison, Cash.” Afterward W. W. Owen was arrested for obtaining money under false pretenses, and at the March Term, 1881, of the district court of Johnson county, was convicted thereof, and sentenced for a term of three years in the penitentiary. On February 11, 1881, Atchison brought his action before a justice of the peace of Johnson county against Cochran, to recover the amount of the draft paid to Owen. After judgment had been rendered before the justice, the defendant appealed to the district court. The case was there tried by the court without a jury, and judgment rendered in favor of Atchison for $151.30, with interest from the 30th day of November, 1880, together with all costs. Cochran excepted, and brings the case here.
    
      E. B. Qill, for plaintiff in error.
    
      I. 0. Pickering, and II. L. Burgess, for defendant in error.
   The opinion of the court was delivered by

Horton, C. J.:

Plaintiff in error alleges that the action brought by defendant in error against him cannot be sustained, because, as he contends, he is not liable upon the bill of exchange as indorser, guarantor, or otherwise. He also alleges that if he was the indorser of the bill, he is not liable, as the bill was paid upon presentment, and if it had not been, no recovery could be had against him, as no steps were taken to charge him as indorser. He further submits that he is not liable for the money paid to the false and spurious payee, as he received no benefit from it. He claims he went to the' bank merely to identify W. W. Owen; that at the request of the cashier he wrote his name on the back of the bill, for the purpose of identifying Owen; that he had no interest in the bill, did not negotiate it, and was not informed and did not understand he was signing as an indorser. The positions taken by plaintiff in error are untenable. His contract was a written one, and he became liable to all its terms. An indorsement of a bill by a third person regularly, following that of a payee, constitutes such third person an indorser of the bill, and thereby he assumes all the obligations and liabilities of an indorser of negotiable paper. It is true, in this case, W. W. Owen was not the real payee, and was in fact a false and spurious payee only, and therefore his indorsement of the bill did not transfer title to Cochran or Atchison, but at the time of the indorsement by Cochran, the latter, by writing his name on the back of the bill, immediately following that of Owen, warranted the genuineness of the prior indorsement, and that he had a valid title thereto. By such warranty of the genuineness of the prior signature, he placed himself in the position of an indorser of the bill. He was accepted by Atchison as an indorser. The money was paid on the bill because of his indorsement, and reliance upon the well-defined contract which the-law implies by such indorse- . ment. He cannot now be heard to say he did not understand he was signing as an indorser, nor can he, after having assumed the obligations and liabilities of an indorser, relieve himself of the consequences to the injury of his indorsee, upon the ground that the loss to such indorser was occasioned by the latter’s own negligence. Cochran by his indorsement engaged the bill would be paid according to its purport, and this engagement was conditional upon due presentment or demand and notice. He also engaged that the bill was in every respect genuine; that it was the valid instrument it purported to be; that the parties thereto were competent; that he had a lawful title to the bill,- and the right to indorse it. (Daniel on Negotiable Instruments, §§ 669, 672, 673; Chalmers’s Digest, pp. 215, 217, arts. 217, 220.) It is well settled by the authorities, if it turns out that any of these latter engagements are not fulfilled, the indorser may be sued for the recovery of the original consideration which has failed, or be held liable as a party without proof of demand and notice. (Daniel on Negotiable Instruments, § 669.) Even after the payment of a bill, if it be ascertained that any of the indorsements ate forged, the drawee can recover back from the person to whom he paid it, and so each preceding indorser may recover from the person who indorsed it to him. In this case, it turned out that the engagement of Cochran as indorser was not fulfilled. W. W. Owen was not the real payee; he was in fact a false and spurious payee; he was not the lawful holder of the bill, and had no right of property or possession therein. Neither Owen nor Cochran had the right to indorse it or appropriate its proceeds. Although Atchison took the draft upon the indorsement of Cochran in good faith and for value, he had no right or title to it, and his payment of the draft to Owen did not divest or impair the title of the true owner, who had not indorsed it. If a bill is payable to the order of a person, and another person of the name of the payee gets hold of it and indorses it to a party who takes it in good faith and for value, such party acquires no title to the bill. (Chalmers’s Digest, art. 81, p. 89.) It is immaterial whether Cochran acted in good faith or not. He is held by his written contract, and as Atchison took the paper thereon and parted with his money, he was entitled to have it refunded, as he acquired no title or interest in the bill, and was wrongfully deprived of his money without any consideration therefor. Cochran was liable upon his written contract of indorsement, without proof of demand and notice.

Counsel for defendant suggest that as “Owen,” not “ Owens,” indorsed his name on the back, that Atchison was guilty of negligence in taking the bill without the indorsement thereon of the name of the payee. Atchison and Cochran seem to have regarded the bill payable to W. W. Owen, and in this neither was guilty of negligence, because the difference in pronunciation between “Owen” and “Owens” is so slight as not to amount to a variance. The two names might be taken promiscuously to be the same in common use. (Stevens v. Stebbins, 3 Scam. 25.)

The judgment of the district court will be affirmed.

All the Justices concurring.  