all bearing forged indorsements, ‘Shepard & | tiff through Gray, on January 30, 1896, to Morse Lumber Co.. H. B. Shepard, Treas.': Date Jan. 25, 1895, amount $446.24; date July 20, 1895, amount $561.97. Shepard & Morse Lumber Co., by H. B. Shepard, Treas." The first notice of the forgeries which is shown to have been given to the Wareham National Bank is that which was contained in the plaintiff's indorsements upon the allonges, stating that the checks were for the first time indorsed by the Shepard & Morse Lumber Company by those indorsements, dated February 12, 1896, and that no prior indorsements were recognized, which allonges annexed to the checks were presented to the Wareham Bank on February 14, 1896, when payment of the checks was demanded and refused. Besides his pay from the plaintiff, which was $20 a week, and his deposit in the Old Colony Trust Company, Fowle had other property. Soon after he became the ledger clerk, he told the plaintiff's treasurer that he had inherited considerable property from his father, who had been a partner in Fowle, Torrey & Co., carpet dealers in Boston, and that he was not obliged to work. In December, 1895, the treasurer, after bearing that Fowle was spending more than his salary, inquired of a gentleman who might be supposed to know how much Fowle had inherited from his father. The reply was that Fowle did inherit, but that the gentleman did not know how much; that he judged from his style of living that he had inherited considerable property, but did not know cr have means of knowing how much; and the treasurer made no further inquiry. On February 10, 1896, Fowle was absolutely insolvent, and has been so ever since. The evidence offered by the defendant to prove many of the facts above recited was excluded at the trial, and, at the close of the evidence, so much of it as had been admitted de bene, and tended to prove lavish expenditure on the part of Fowle, and to show the extent of the plaintiff's losses by Fowle's depredations, was stricken out. The defendant's requests for rulings, however, were framed as if all the evidence were in; and, in refusing them, the judge made two special findings of fact, which were, in substance, that the defendant's position had not been changed to his prejudice after the misappropriation of the checks by Fowle, and that Fowle was not permitted by the plaintiff's negligence to obtain payment of either check. The requests for rulings were, in substance, that the plaintiff could not maintain the action; that the plaintiff's neglect, after the discovery of the forgery of the indorsements, to give notice of the same to the defendant until February 10th, was an unreasonable delay, which of itself discharged the defendant; that it was an unreasonable delay, which -discharged the defendant if his position had in the meantime been changed to his prejudice; that the assurances given by the plain induce the defendant to give up the checks then in his possession, and the receipt then given by Gray, are an adoption and ratification of the indorsements and of the payment of the checks thereon, so that the defendant cannot be held liable on the checks; also, that those assurances and the receipt estop the plaintiff from maintaining the action if the defendant's position was changed to his prejudice by giving up the checks; and that his position was so changed. There were also requests with reference to the trial balances for February and July, 1896, to the effect that if the examination of the books for making up the trial balances would have disclosed to an honest clerk the loss of the checks, and brought to the plaintiff's knowledge facts which, by the exercise of due care and diligence, would have disclosed the forgeries, the plaintiff cannot escape the knowledge to be thereby imputed to it, because the examinations and trial balances were made by Fowle; that the plaintiff must be deemed to have had knowledge of the first forgery in February, 1895, and of the second in August, 1895, and cannot recover, because it did not give notice of the forgeries to the defendant at those times, and because of unreasonable delay after those dates in giving notice to the defendant, and because of the delay since those dates, if the defendant's position has been changed to his prejudice. There were also requests to the effect that if Fowle was permitted, by the negligence of the plaintiff, to get possession of the checks, and to obtain payment on them, the paintiff could not recover, and that if, in the month after each check was given, the plaintiff had means of knowledge that the check had been taken from it, and collected by Fowle, and remained ignorant of those facts by reason of its want of ordinary care, the plaintiff could not recover on the check, and that in those circumstances it could not recover on the check if in the meantime the defendant's position had been altered to his prejudice. There was also a request to the effect that if the plaintiff knew that the defendant was its regular customer, and that he had been buying lumber of it for years, paying for it with his checks sent to the plaintiff by mail, and that Fowle, on the receipt of such checks, was in the habit of receipting the bills, and returning them to the defendant as paid, and that he was authorized so to do; and if the plaintiff knew or had reason to believe that the defendant relied upon the return of the receipts as evidence that his checks had been duly received by the plaintiff, and had been duly honored, and had been collected by it,-it was the plaintiff's duty to take reasonable care of such checks, and to use ordinary care in availing itself of the means of information in its possession to ascertain whether such checks were duly collected for its account, and it was bound to the defendant to know at any time when, by the use of ordinary care, it had the means of knowledge in its possession, that it had lost, without receiving payment, any check so received from the defendant, and at once to inform the defendant thereof, and that a failure so to inform itself and to notify the defendant would discharge him. There were further requests, to the effect that the plaintiff's action in asking for and taking from Fowle the check given by him to the plaintiff on February 28, 1896, after the plaintiff knew that Fowle had deposited to his own credit checks payable to the plaintiff, was a ratification by it of Fowle's appropriation to his own use of the checks, and that the plaintiff's action in requesting the Old Colony Trust Company to pay checks of Fowle's after the plaintiff had such knowledge was such a ratification. c. 59, 19; 45 & 40 vict. c. 61, § 60. We are of opinion that the holder of an unindorsed check, payable to his own order, is under no legal obligation to the drawer to exercise care as to how the check shall be kept, or to whom he shall commit its custody, or to see to it that the check shall not be put in circulation by the forgery of his indorsement, so long as he acts honestly, without collusion. Such a holder is not deprived of his remedy against the drawer by merely negligently intrusting such a check to a clerk who, due care would have told him, was dishonest, and thus giving the clerk an opportunity to commit crime. He has the right to assume that his clerk will not commit a crime, and to rest upon the presumption that he has not stolen or forged, and will not do so; and he is under no legal obligation either to the drawer of the check or to the public to see to it that the check is not put in circulation with a forged indorsement. Combs v. Scott, 12 Allen, 493, 497; Belknap v. Bank, 100 Mass. 376; Bank v. Stowell, 123 Mass. 196; Mackintosh v. Bank, Id. 393, 395; Bank v. Gorham, 169 Mass. 519, 521. 48 N. E. 341; Cotton Co. v. Wilson, 49 Law J. 713; Societe Generale v. Metropolitan Bank, 27 Law T. (N. S.) 849, 858; Scholfield v. Londesborough [1896] App. Cas. 514; Bank of Ireland v. Trustees of Evans' Charities, 5 H. L. Cas. 389; Ogden v. Benas, L. R. 9 C. P. 513; Fine Art Society v. Union Bank of One question for decision is whether the plaintiff can recover if, by its own negligence in the conduct of its business, Fowle was in its employ, and intrusted with the possession of the checks, when ordinary care would have shown the plaintiff that Fowle was dishonest, and had already stolen from it, and collected, by forging the plaintiff's indorsement, many checks previously sent to it by its customers. The finding of fact that Fowle was not permitted by the negligence of the plaintiff to obtain payment of either check does not render this question immaterial, because, if the plaintiff's negligence | London, 17 Q. B. Div. 705; Swan v. Ausin this regard was a material consideration, much evidence relevant to it was stricken out or excluded, and the finding made without considering that evidence has no weight. It is apparent that the judge below considered such negligence on the part of the plaintiff wholly immaterial. If it was so, the exclusion of evidence tending to establish it did the defendant no harm; but the finding of fact must be laid one side, and, notwithstanding that finding, we must inquire whether the plaintiff's negligence, if it could be found from the evidence offered, was a defense. The doctrine of contributory negligence as a defense to actions of tort is now of most frequent application; but we have been referred to no instance in which it has been held applicable to actions upon commercial paper, or even when the holder of such paper sues in tort for its conversion one who has innocently taken it upon a forged indorsement. Nothing could more completely unsettle commercial dealings than to extend that doctrine to suits brought by holders of negotiable paper against other parties thereto. If any change is to be made in the law, looking to the discouragement of negligence on the part of holders of such paper, and to the protection of parties who may be defrauded by the forgery of indorsements, it should be made by the legislature, as in the case of the English statutes as to indorsements of checks and bills upon bankers. See St. 16 & 17 Vict. tralasian Co., 2 Hurl. & C. 175, 189; Arnold v. Bank, 1 C. P. Div. 578, 586, 588. Such a holder of a negotiable check is under no other legal obligations with reference to it than those which rest upon any holder of commercial paper completed and put in circulation by the maker. If the check is stolen from him, and put in circulation, by means of the forgery of his indorsement, he is not answerable, as is one who intrusts to another his signature or indorsement in blank, with authority to use it in making or giving currency to negotiable paper. The doctrine of Putnam v. Sullivan, 4 Mass. 45, and of Young v. Grote, 4 Bing. 253, does not apply, and it cannot properly be extended to the case of a completed check already in circulation, and intrusted by the holder to a clerk for purposes which neither give nor imply any authority to pass it on to another holder, nor give the clerk any power to do so without the commission of a crime. It is not necessary now to determine whether the debts for which the checks were given were extinguished. If the checks were taken by the plaintiff in absolute extinguishment of the debts, that circumstance could not relieve the drawer from his legal obligations as drawer. While the drawer has done his duty, and it is through no fault of his that the payee does not get his money if the check is stolen from him and collected upon a forged indorsement, that does not furnish a sufficient reason why the loss should re main upon the payee, rather than the drawer. The check was received in payment, and the debt extinguished only in consideration of the drawer's obligation as drawer, and of the payee's rights as holder, which included the right of recourse to the drawer if, upon proper indorsement and due demand, the check should not be paid by the drawee. Although there are intimations in support of the theory that cases like the present are instances in which, as to two innocent parties, losses are to be left where they fall, we think the rights of the present parties must be worked out by considering the usual rights of the drawer and drawee of a check giv en in a commerial transaction. See Thompson v. Bank, 82 N. Y. 8; Morse, Banks, 395. The fact that the defendant had been in the habit of buying goods of the plaintiff for 10 years, and of making payment by checks, imposed no liability upon the plaintiff as to the methods in which its own business should be conducted, or as to what clerks it should employ. So far as these checks are concerned, its obligations to the defendant were merely those defined by the law of negotiable paper, and did not include the duty of taking care that the checks should not be stolen or its indorsement forged. Nor do we think that the plaintiff is to be charged with the knowledge that the checks had been stolen or embezzled and collected upon its forged indorsements, either because Fowle, its clerk, had that knowledge, or because the means of knowledge existed in the plaintiff's books of account, so that the plaintiff would have made the discovery if its monthly trial balances had been made by an honest clerk. The loss of the checks to the plaintiff was not in fact known to it until Fowle's arrest, on January 29, 1896, and, as to all other parties to the checks, they were never lost checks. One was paid in four days, and the other in nine days, after its date; and they were thenceforth in the custody of the drawee or drawer. Assuming that the owner of a check which he knows to be lost is under a duty to give to the public and to the parties to the check immediate notice of the loss, we see no reason for holding that one who has become the holder of a check is under a duty to give notice to the drawer and the drawee or to the public as of a lost check if the check is in fact stolen and collected upon a forged indorsement, and he remains honestly ignorant of those facts, and incorrectly but honestly assumes that it has been collected in the regular course of his business. Unless the plaintiff was under a duty to give notice as of a lost check, there was no duty to any one connected with the cheeks which required the plaintiff to examine its books of account, or to make trial balances, or to discover by any means what had become of the checks. Assuming that, if such a duty towards other parties had rested upon the plaintiff, it would be chargeable with the knowledge which Fowle had, or which would have been acquired by the making of the trial balances by an honest clerk, or by an examination of the plaintiff's books by its officers, as the depositor was chargeable with the knowledge of his dishonest clerk to whom he instrusted the examination of returned checks in Dana v. Bank, 132 Mass. 156, since no such duty to others rested upon the plaintiff, it is not to be charged with knowledge which it did not in fact have. Fowle was himself defrauding the plaintiff in forging the plaintiff's indorsement and collecting the checks for his own use, and therefore his own knowledge of the fraud acquired in its perpetration is not to be imputed to the plaintiff. Bank v. Clark, 166 Mass. 27, 43 N. E. 912, and cases cited. Nor is this contended. And, as the examinations of the books in making the trial balances were not made in the performance of a duty owed by the plaintiff to any other party. the knowledge of the agent who made those examinations is not to be imputed to the plaintiff, nor is it to be charged with the information which its means of knowledge disclosed, it not being willfully ignorant, nor having purposely neglected to use the means of knowledge within its power. Combs v. Scott, 12 Allen, 493, 497. As the plaintiff cannot properly be charged with imputed knowledge that Fowle was indorsing with its name these checks or any of the other checks which he stole or embezzled and collected by forging its indorsement, we find nothing in what occurred until the plaintiff obtained actual knowledge of the frauds to work an actual or implied adoption or ratification of Fowle's acts in indorsing the checks with the plaintiff's name, or in collecting them. The want of actual knowledge is fatal. Combs v. Scott, 12 Allen, 493; Murray v. Lumber Co., 143 Mass. 250, 9 N. E. 634; Dole Bros. Co. v. Cosmopolitan Preserving Co., 167 Mass. 481, 46 N. E. 105. The receipting of subsequent bills by the plaintiff without informing the defendant that the debts for which these checks were given had not been extinguished was not an act intended or designed to convey to the defendant any representation as to what had become of the checks in suit, and could not justify the defendant in his inference that the checks had been collected by the plaintiff, so as to estop the plaintiff from showing the truth. The receipting of subsequent bills without mention of the previous checks was not done with the intent to mislead the defendant, nor with any expectation or reason to believe that the defendant would, in consequence of it, do or omit to do anything with reference to the checks now in suit. Stiff v. Ashton, 155 Mass. 130, 29 N. E. 203; Lincoln v. Gay, 164 Mass. 537, 42 N. E. 95; Bank v. Rogers, 167 Mass. 315, 321, 45 N. E. 923. The remaining question is whether what occurred after the actual discovery of the frauds requires us to sustain the defendant's exceptions. It is not necessary to consider | against the drawee was not so plain and easy whether the payee of a check which has been stolen from him, put in circulation by forgery, and paid by the drawee, upon ascertaining those facts should give notice to the maker, and to those who have taken the check as rightfully in circulation, of such facts within the payee's knowledge as are material to the rights and obligations of such persons growing out of their transactions with the check. A majority of the court is of the opinion that a payee who, under such circumstances, misleads the drawer to his prejudice, and thereby places him in a worse position than he would otherwise be in with reference to the assertion or protection of his rights resulting from what has been done with the check, is thereby estopped from maintaining an action against the drawer upon the check, and that for this reason the exceptions should be sustained and the finding for the plaintiff be set aside. It is true that it was found specially that the defendant's position had not been changed to his prejudice; but this finding must be disregarded, because evidence relevant and material to the question was offered by the defendant, and wrongfully excluded, even if the finding was correct upon the evidence admitted, which we do not decide. The evidence offered and excluded to show upon what footing and by what representations and assurances the plaintiff, through Gray, got the checks from the defendant, was material upon the questions whether the plaintiff was estopped, by its own acts done after its discovery of the forgeries, from collecting the checks, of the defendant, and whether the plaintiff had adopted as to him the forged indorsements. So, also, the evidence of the plaintiff's acts between its discovery of Fowle's frauds and its demand of the checks from the drawee on February 14th, was material in determining whether the defendant had been prejudiced in his rights to recover against the drawee. To say nothing of the plaintiff's omission to notify the defendant of its own purpose to treat the checks as unpaid checks, and to collect them of the defendant, the plaintiff's act in getting the checks from the defendant on January 29th as paid checks was intended by the plaintiff to change the defendant's position, and did change it, by depriving him of the possession of the checks. They had come to the defendant's hands honestly, and as vouchers for charges made against him by the drawee. Even if they had been demanded of him by the plaintiff as its property, the defendant could honestly refuse to give them up, and could honestly at once return them to the drawee, with notice of the facts, and thus save himself from loss by perfecting his right to recover from the drawee the amount of the unauthorized payments which the drawee had charged against him in account. See Bank v. Smith, 169 Mass. 281, 47 N. E. 1009. The enforcement of the defendant's rights for him without as with the possession of the checks, and the loss of possession itself might have been found a change in his position to his prejudice. Besides this, the plaintiff's act in getting the checks from the defendant as paid checks, without notifying him that the plaintiff claimed them as its own property, and intended to collect them, while at the same time giving the defendant information that the plaintiff's indorsements were forged, would naturally induce the defendant to omit to give information of the forgery to the drawee; and it does not appear that any information was given to the drawee until the checks were demanded again of it, on February 14th. The fact that the drawee has always been solvent, and remains solvent, is not the only factor in determining whether the defendant has lost his right against the drawee. See Dana v. Bank, 132 Mass. 156; Bank v. Morgan, 117 U. S. 96, 6 Sup. Ct. 657; Leather Manufacturers' Bank v. Merchants' Bank, 128 U. S. 26, 9 Sup. Ct. 3. Without discussing that question, we think the evidence as to what was done by the plaintiff after it knew of the forgeries should have been admitted, and that if it appeared that the plaintiff got the checks from the defendant as paid checks, to be returned to him, and did not properly notify the defendant that the plaintiff claimed the checks as unpaid and as its own property, and that it intended to assert that ownership and collect the checks, a finding for the defendant would be warranted. Exceptions sustained. (171 Mass. 534) WINSLOW et al. v. EVERETT NAT. BANK. 1. A payment by a bank to the holder of a check on which the name of the payee or indorsee is forged makes the bank liable to the depositor as if the pretended payment had not been made, since nothing but actual payment, accord and satisfaction, or a release under seal, is an answer to the depositor's demand. 2. It is immaterial, in so far as the liability of the bank to the depositor for the amount of such check is concerned, whether or not its delivery to the payee was for the purpose of payment. Exceptions from superior court, Suffolk county; John H. Hardy, Judge. Action by George S. Winslow and others against the Everett National Bank. There was a judgment for plaintiffs, and defendant excepts. Exceptions overruled. W. C. Loring and Clapp & Glover, for plaintiffs. Lincoln & Badger and W. M. Noble, for defendant. HOLMES, J. This is an action in the name of a depositor in the defendant bank to recover a sum deposited with it, with a count for refusing to honor a check for the same amount. The check was given by the plaintiff to the Shepard & Morse Lumber Company, and was abstracted by Fowle, and used in the way explained in the previous case. Lumber Co. v. Eldridge, 51 N. E. 9. The defendant paid a holder under an indorsement forged by Fowle, and refused to pay the holder under a true indorsement made at a later time, after the forgery had been discovered. This action is brought by the lumber company, in the name of the plaintiff, by virtue of an assignment from the latter. The defendant sets up as defenses the alleged negligence of the lumber company in giving Fowle a chance to commit his fraud, and that the nominal plaintiff's debt to the lumber company has been satisfied, either by the check or by the subsequent assignment, and, therefore, that the nominal plaintiff has suffered only nominal damages. The defense based on the carelessness of the lumber company is disposed of in the last case, and it is unnecessary, therefore to ask how, if a contract is good as to the contractor, or a debt is due to a creditor, it can be invalidated by being assigned. The other defense is res inter alios. The bank becomes the plaintiff's debtor for the money had and received. Nothing but payment, accord and satisfaction, or a release under seal, is an answer to the plaintiff's demand. Leather Manufacturers' Bank v. Merchants' Bank, 128 U. S. 26, 34, 9 Sup. Ct. 3. It is no concern of the bank whether the plaintiff owes the lumber company or not. But, further, the plaintiff's debt is not paid if the check is not paid, as it has not been; or, at most, the plaintiff's liability is only changed to a liability on the check,-a change which would be a curious reason for holding the bank exonerated from paying the check. Whether a depositor whose check has been paid upon a forged indorsement, and returned to and held by him as a voucher in the account between himself and his bank, and who again puts the check in circulation by redelivering it to the payee, whose indorsement has been forged, can maintain an action against the bank for refusing to honor the check upon its second presentation, without notifying the bank, before such second presentation, that its payment of the check was unauthorized, and that he has again put the check in circulation, was not raised at the trial, and was not argued in this court; and upon that question we express no opinion. Exceptions overruled. (171 Mass. 492) MCDONALD v. SARGENT et al. (Supreme Judicial Court of Massachusetts. Middlesex. June 24, 1898.) CONTRACT OF INFANT-EVIDENCE-PLeading. 1. A written agreement by a minor to work as an apprentice for a stated compensation, and under which he continued to serve after attaining majority, though it be insufficient as an indenture of apprenticeship, because not executed in compliance with Pub. St. c. 149, relating to apprentices, is competent evidence, in connection with his acceptance of wages thereunder, and other acts, as tending to show a ratification and affirmance of the contract. 2. Pub. St. c. 167, § 22, providing that written instruments relied on in an answer shall be set out, or a copy attached, does not require that an answer by way of general denial and pleading payment to an action on a quantum meruit for services rendered by an infant shall set out a written contract, fixing their value, and ratified after he became of age, where such contract is relied on merely in proof of the allegation of payment. Exceptions from superior court, Middlesex county; Edgar J. Sherman, Judge. Action by one McDonald against one Sargent and others. There was a verdict for defendants, and plaintiff took exceptions. Exceptions overruled. Frederick A. Fisher, for plaintiff. Jerome F. Manning, for defendants. LATHROP, J. The plaintiff sues upon a quantum meruit to recover for his services from March 25, 1891, to June 13, 1893. On April 27, 1891, after the plaintiff had worked for the defendants about a month, he entered into a written agreement with them by which he agreed to work for the defendants for three years as an apprentice, for the purpose of learning the trade of a machinist. The amount to be paid was 75 cents a day for the first year, 85 cents a day for the second year, and 95 cents a day for the third year. At this time the plaintiff was a minor, not becoming of age until February 1, 1892. He continued to work for the defendants until June 13, 1893, receiving the amount agreed upon monthly, without objection. Then he left the defendants' employ, without notice. The jury found specially that the plaintiff, after he became of age, ratified and confirmed the written agreement, and that he was paid all that his services were reasonably and fairly worth, both during his minority and afterwards; and returned a general verdict for the defendants. The principal question is whether the written agreement was admissible in evidence. Most of the objections made to it are that it did not comply with the provisions of Pub. St. c. 149, relating to the binding of apprentices, but it was not put in for this purpose, and the judge ruled that, as it was not in accordance with the statute, it did not bind the plaintiff, and that it could not affect the plaintiff's right to recover, unless the jury found that after the plaintiff became of age he ratified and confirmed it; that whether he ratified and confirmed it was a question of fact; and that the jury might consider his acts, after he became of age, in receiving the money, and all his other acts, as bearing upon that question. These rulings, we are of opinion, were correct. A written agreement made by a minor is not void, but void |