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parties. The instant case involves the following checks drawn by Houseman-Spitzley Corporation: (1) a check for $1,000 payable to Thomas H. Conway; (2) a check for $500 payable to H. E. Funke; (3) a check for $1,493 payable to Russ J. Cristy; (4) a check for $700 payable to Anton Kaier; (5) a check for $918.01 payable to Carrie Esterling; (6) a check for $782.34 payable to E. A. Barron. Upon each of these checks Kux forged the name of the payee and deposited them with defendant, receiving credit therefor in his account. Defendant in turn indorsed them and they were paid through the clearing house by plaintiff (in case of one check by plaintiff's assignor), and charged to the account of Houseman-Spitzley Corporation. Upon learning of the forgeries Houseman-Spitzley Corporation promptly notified its bank, the plaintiff here. This seems to have been on August 1st. The vice-president required more proof before taking action. A confession was obtained from Kux August 2d. This was taken by a stenographer before an assistant prosecuting attorney, the transcript of which was delivered to Mr. Spitzley of the Houseman-Spitzley Corporation on Saturday, August 4th. On Monday, August 6th, notice of the forgeries was given to defendant by the plaintiff. As to the checks (1) to and including (4) the defendant here interposed the same defense as in the other case, that it was relieved of liability by failure to more promptly give notice of the forgeries. The trial judge declined to follow defendant's counsel, but entertained the view that as matter of law the notice was given within a reasonable time. He therefore directed a verdict for the amount of these four checks. Defendant here assigns error on this direction and the refusal of the court to direct a verdict for it. In the other case we held that defendant was not relieved from liability by the delay unless it was to its prejudice, and that upon the facts it had not shown prejudice. As to the four checks now under consideration, the facts on this record are the same as those in the other case, except that the delay in giving notice was less here than there. The instant case upon this question is controlled by the opinion in the other case, which fully considers and discusses the law applicable to the state of facts here under consideration. Defendant's assignments of error are overruled.
As to the other two checks a different situation is presented. While Kux forged the names of the payees on the checks to Carrie Esterling and E. A. Barron and deposited them in his account, he gave his own check, which was subsequently cashed, to these parties for an amount greater in each instance than the amount of the checks appropriated, and the deal with each of these parties was an actual deal, a purchase from them of an interest in property; therefore, Houseman-Spitzley Corporation paid, although by circuity, for the interest in the lands which it purchased from Carrie Esterling and E. A. Barron, and was not damaged by the transaction. If the Houseman-Spitzley Corporation was not damaged by these forged indorsements it could not call upon its own bank to make good losses it had not suffered by these particular transactions, nor recover for damages which had not been occasioned by these particular forgeries. If it could not recover from its bank, plaintiff here, it is obvious that plaintiff cannot recover from defendant. The trial judge entertained this view and directed a verdict for the defendant as to these two checks. Plaintiff assigns error upon this direction and the refusal to direct a verdict in its favor. Its assignments of error are also overruled.
The judgment must be affirmed.
BIRD, C. J., and MOORE, STEERE, BROOKE, KUHN, and STONE, JJ., concurred with FELLOWS, J.
OSTRANDER, J. (dissenting). Plaintiff paid a forged check which defendant had indorsed and plaintiff sued the indorser. I am not able to see what HousemanSpitzley has to do with the matter. True it was Houseman-Spitzley's check and has been charged by plaintiff to its account, but how does the fact that Houseman-Spitzley got indirectly - something of value change the situation?
I am of opinion that the judgment should be reversed and a new trial granted.
PEOPLE v. WOODS.
1. CRIMINAL LAW-CHARACTER WITNESS-NEGATIVE TESTIMONYADMISSIBILITY. The testimony of a character witness, in a criminal prose
cution, that the reputation of defendant was good was admissible, although he admitted, on cross-examination, that he had never heard anything said about defendant's
reputation, one way or another. 2. SAME-GOOD CHARACTER-PRESUMPTION-INSTRUCTIONS.
It was error for the court below to refuse defendant's re
quested instruction that in a criminal prosecution the
accused is presumed to be of good character." 3. SAME.
Where defendant's character evidence was negative, it was
error for the court below to belittle it by stating to the jury that it was not "much evidence of character or
reputation." a 4. SAME-GENERAL RULE-CONSPIRACY-EVIDENCE-ADMISSIBILITY.
It is the general rule that, where several persons are en
gaged in one common unlawful enterprise, whatever is 'On presumption as to good character of accused in criminal case, see note in 46 L. R. A. (N. S.) 342.
"As to proof of character by negative evidence, see note in 22 L R. A. (N. S.) 666; 2 L. R. A. (N. S.) 553.
said or done by any one of them in the prosecution of the common enterprise, or while it is still in progress,
is evidence against all the parties to it. 5. SAME-ARSON-CONSPIRACY_EVIDENCE.
In a prosecution for arson, a conspiracy to burn the building
in question having been prima facie proven, a conversation between witness and one of the conspirators in connection with work being done to further the conspiracy,
was admissible. 6. SAME- EVIDENCE-TESTIMONY OF CO-CONSPIRATOR-ADMISSIBILITY. In such prosecution, testimony of one of the conspirators
implicating his co-conspirators, was admissible.
Exceptions before judgment from Bay; Houghton, J. Submitted April 17, 1919. (Docket No. 111.) Decided May 29, 1919.
Frank Woods was convicted of arson under section 15289, 3 Comp. Laws 1915. Reversed.
Coumans & Gaffney, for appellant.
William A. Collins, Prosecuting Attorney, for the people.
STEERE, J. On the night of February 2, 1915, a barn located on south Henry street in Bay City in which defendant ran a livery business was, with its contents, destroyed by fire. The fire was charged to have been of incendiary origin. Defendant was subsequently arrested, tried and convicted of having feloniously caused and procured the same to be burned for the purpose and with intent to injure and defraud the insurers of the contents of said barn in violation of section 15289, 3 Comp. Laws 1915. His conviction was thereupon appealed to this court for review on a bill of exceptions settled before sentence, containing some 40 assignments of error.
Defendant had been a resident of Bay City for many years. He had followed peddling fruits and vegetables in Bay City and at times dealt in horses. In the spring of 1914 he entered into negotiations with one Henry La France, an undertaker, by which he rented from him the barn which was burned, for an indefinite period at $10 a month, he to fix it up to suit himself. During the summer he bought of La France a quantity of old livery stock for which he testified that he paid $3,150 and started a livery business. At the time of the fire his stock was covered by an aggregate insurance of $4,600 placed in seven different companies. They refused to recognize liability and protracted litigation followed which resulted eventually in his recovering a total of $4,393.91 insurance.
It was claimed by the prosecution that much of the property covered by this insurance was old, out of date and of small value, and that Woods' livery business proved unprofitable; that he and La France, who occupied a building close to the livery barn and was on intimate terms with Woods, planned to burn this barn to get the insurance, and induced a hack driver named' McCauley, who worked in Woods' stable then but had previously been employed by LaFrance, to assist in carrying out the project; that for this unlawful purpose the three entered into a conspiracy by which LaFrance and McCauley undertook, for a consideration from Woods and with his co-operation, to burn the barn by a contrivance combining a candle, bottle, gasoline and some ether which would ignite the hay in the loft at an agreed favorable time of the night when Woods was at home, which was accomplished as planned; that differences arose between McCauley and Woods in connection with or following the latter's litigation with the insurance companies, resulting in disclosures by McCauley which led to his own arrest in the spring of 1917, upon a charge of burning this stock. To this he pleaded guilty and turned State's evidence, disclosing the nature and circumstances of