shown him, Dunbar pronounced both the note and mortgage to be forgeries. This was on November 7, 1885. The plaintiff then brought out the check, and Dunbar pronounced his name indorsed thereon to be also a forgery. It appears from the evidence that Dunbar was not in the territory at the time the loan was effected, and knew nothing of the transaction. The plaintiff, immediately on the same day, November 7, went to the defendant bank, and asked if the signature of Dunbar was a forgery, and the cashier, after inspecting it, said that he believed it was. The plaintiff then went to his attorney, and they together went to the bank, and the plaintiff told the defendant that he would hold the bank responsible. But, at the suggestion of the cashier, he delayed action for some days. On the 1st of December, he went to the bank, and formally offered back the check, with the forged name upon it, and demanded the money claimed to be due him. The bank refused to receive back the check, and refused to pay him. the sum claimed. He then brought this action to recover the amount. The defendant contends that the judgment is erroneous; that the bank is not liable to pay plaintiff the amount claimed in this action, for the reason that the money had already been paid out upon a check of the plaintiff drawn in favor of W. A. Dunbar; that, although the payee's name indorsed on the check was a forgery, the loss should fall upon the plaintiff, because it was through his negligence that the check was put into circulation-he having delivered it to a stranger, and not to the payee.

It is a well-recognized general rule that where a party has money in a bank, and draws his check therefor, payable to the order of a particular person, it gives authority to the bank to pay the money to such person or to his order, unless in due time notified not to do so. But the check so drawn does not give authority to the bank to pay to any other person; and if the bank fails to follow the direction specified in the check, and assumes to pay to some one else, it does so at its own risk. When the payee's name indorsed on the check is a forgery, and the check is paid on such forged indorsement, it is not a payment to the order of the payee. The general rule referred to is

recognized by the defendant, but it contends that this case presents an exception to the rule, in that it shows such negligence on the part of the drawer as to preclude his recovery in this action. We have already noticed that the check was drawn payable to W. A. Dunbar, but was handed to C. J. Smith, a real estate agent, who was assuming to represent Dunbar, although in fact, he had no authority whatever to do so. The party (Dunbar) for whom Smith was pretending to act, and the party (plaintiff) from whom the money was being obtained, were not brought together. They did not meet; but the negotiations were wholly between Smith, the real estate agent, on the one side, and the plaintiff, on the other. The making of loans in that manner was a common and ordinary practice in Salt Lake City. At the time of this transaction, nothing had appeared against the character of Smith, the real estate agent, and the plaintiff followed an ordinary course of business men. He used ordinary care. No greater care was required of him. He made the check payable to Dunbar. The fact that he handed it to Smith to be delivered to Dunbar was not, under the circumstances, negligence on his part. We see no reason whatever to say that the general rule should not apply in this case. The facts do not warrant us in saying that it is an exception thereto. In paying the money on the forged indorsement, it paid out its own money, not that of the drawer. The money of the drawer still remained in the bank subject to his order: Bank v. Whitman, 94 U. S., 347; Bank v. Morgan, 117 U. S., 112, 6 Sup. Ct. Rep., 657; Bank v. Bank, 91 N. Y., 111.

It is further contended by the defendant that the plaintiff was negligent in not discovering the forgery earlier than he did; that for such purpose he should have made an early and thorough examination of the pass-book and the returned checks. The supreme court of the United States on speaking upon this subject in the case of Bank v. Morgan, 117 U. S., 107, 6 Sup. Ct. Rep., 660, said: "The drawer was not presumed to know the signature of the payee. His examination of the account would not necessarily have disclosed the forgery of the payee's

name. Therefore his failure to discover that fact sooner than he did was not to be attributed to want of care." And, again, in the same case, (page 117,) the court said: "As the depositor was not presumed to know, and as it did not appear that he in fact knew, the signature of the payee, it could not be said that he was guilty of negligence in not discovering, upon receiving his pass-book, the fact that his clerk, or some one else, had forged the payee's name in the indorsement." In the case at bar there is nothing to show that the drawer knew the signature of the payee of the check; and, if not, an examination of the returned checks and the pass-book would not have disclosed to him the forgery. But the supreme court of the United States, in the same case, further said: "Of course, if the defendant's officers, before paying the altered checks, could, by proper care and skill, have detected the forgeries, then it cannot receive a credit for the amount of those checks, even if the depositor omitted all examination of his account." The evidence clearly shows, in the present case, that the officers of the defendant before paying the check, could with proper care have discovered the forgery of the payee's name on the check. They had Dunbar's genuine signature in the bank, and accessible. From the evidence it is manifest that, had they made a comparison between the genuine signature in their possession and the signature on the check, the forgery would have been detected. A simple inspection satisfied the cashier of the forgery at a subsequent date, and no doubt would have done so at the time the check was presented.

It is further said that the plaintiff was negligent in not tendering back to the bank the check immediately upon. the discovery of the forgery, instead of waiting 24 days. thereafter. The evidence shows that the plaintiff immediately, upon the same day that the forgery was discovered, went to the bank, and notified it of the discovery of the forgery, and that he would hold the bank responsible, and at the same time threatened suit; but, at the request of the bank, he delayed action. The bank having failed to pay, he, unwilling to longer delay, on the first of De

cember made a formal offer of the check to the bank. If it was necessary for plaintiff to have tendered back the check, such tender within a reasonable time was sufficient. Cooke v. U. S., 91 U. S., 402; Schroeder v. Harvey, 75 Ill., 639; Ellis v. Trust Co., 4 Ohio St., 662; 2 Daniel, Neg. Inst. sec. 1372. There could not be said to have been an unreasonable delay in this case, as whatever delay occurred was attributable to the defendant itself. If, however, the plaintiff was negligent in tendering back the check, the fact would not justify the defendant in refusing to pay the money to the plaintiff until it should show some actual damage caused thereby: U. S. v. Bank, 6 Fed. Rep., 853; Bank v. Bank, 91 N. Y., 110; Welch v. Goodwin, 123 Mass., 71. By the introduction of the evidence as to the solvency of Walker Bros., it was made clear that no damage could result to the defendant by reason of having lost his recourse, or the advantage of it. The introduction of that evidence was objected to as not upon any issue in the case. It was claimed that the defendant was injured by the negligence of the plaintiff in discovering the forgery and in notifying the bank. This evidence shows that they had lost nothing as to a recourse upon the parties to whom the bank had paid the money. We do not see that the evidence was improper.

It is objected that the testimony of L. S. Hills, as to the signature of Dunbar, was improperly admitted as evidence. The witness said that his experience in determining the genuineness of signatures, or in comparing of handwriting, from his duties in the bank, had gone to the extent that he could determine, from a comparison of handwritings, whether the signature was genuine or not. We think sufficient foundation was laid for the introduction of the testimony. The evidence, however, was made immaterial by the subsequent testimony of Dunbar himself as to the signature being a forgery.

The sixth instruction asked by the defendant was properly refused. If it were proper for the court to give expression to an opinion of the facts, the expression evidently would have been to the contrary of that set forth

in the instruction; but, upon the whole case, we think the law was properly submitted to the jury.

We see no error in the record, and the judgment and the order overruling the motion for a new trial are affirmed.

ZANE. C. J., and HENDERSON, J., concurred.

The appellant thereupon filed a petition for rehearing, upon which the following opinion was delivered, denying the rehearing.

BOREMAN, J.:

This is an application for a rehearing based upon a variety of grounds. Much of the petition is devoted to a summary of facts given in the opinion filed a few days since. The petition sets forth that the court erred in saying that on the 10th of November, 1884, C. J. Smith "was acting as a broker in obtaining and making loans upon real estate security." This was an incidental statement of fact, and one not at all necessary to a decision of the case. Indeed, it, and the whole statements of facts, might have ⚫ been omitted entirely, and the omission would have not changed the ruling, or affected it in any way. The statement was not a finding of facts, but a mere summary. But, in truth, the whole evidence goes to show that, at that time, Smith was a real estate agent; and that real estate agents were in the habit of making loans upon real estate security. The court cannot look at the case from a standpoint on the one side or the other, but must look at it from both sides; or, more correctly speaking, from neither side, but from the stand-point independent of both sides.

The petition again says that there is no evidence that the way in which Smith transacted this business with Brixen "was a common and ordinary practice in Salt Lake City," or that this "manner of transacting the business was not uncommon." The testimony of Mr. Gillespie and Mr. Pomeroy, especially the latter, shows this statement to have been correct. Mr. Pomeroy says that very frequently the real estate agents conducted the transaction