The denial of relief has also been supported upon the ground that, although the payment is made in mis-reliance upon a supposed duty to the drawer, there is no mis-reliance upon a supposed duty to the holder, the person to whom the money is paid, which is an essential element of the right to recover.
This principle - that the mistake must be as to the plaintiff's right against or duty toward the defendant - is offered by Professor Wigmore3 as one which "seems to reconcile all of the various cognate instances and with a few exceptions, to lead to the conclusions actually adopted in the majority of jurisdictions," although he acknowledges that in the cases under consideration "mercantile custom or practical expediency, and not any consistent legal principle, has usually been the guide of the courts."
No case of the forgery of a drawer's signature has been found in which this theory - that the mistake must be as to the plaintiff's right against or duty to the defendant - has actually been made the basis of recovery. And while, as elsewhere appears, the principle has some judicial support, it has been pointed out that where, as in this case, the plaintiff's mistake is as to his duty to a third person to pay the money sought to be recovered, he is entitled to restitution (ante, Sec. 19). Moreover, to say that the drawee of a bill, in making payment to the holder, relies upon two separate duties, - one to the drawer to pay the bill, and the other to the holder to pay it to him, - and that consequently if the drawer's signature is not genuine, the mistake is as to the former duty and not as to the latter, while if an indorsement is not genuine, the mistake is as to the latter and not as to the former, is to support a distinction which seems almost too slender and unsubstantial to be practicable.
1 Howard v. Mississippi Bank, 1876, 28 La. Ann. 727; 26 Am. Rep. 105; Commercial, etc., Bank v. First Nat. Bank, 1868, 30 Md. 11; 96 Am. Dec. 554; Salt Springs Bank v. Syracuse Inst., 1863, 62 Barb. (N. Y. Sup. Ct.) 101; Levy v. U. S. Bank, 1802, 1 Binn. (Pa.) 27; Bank of St. Albans v. Farmers' Bank, 1838, 10 Vt. 141; 33 Am. Dec. 188; Johnston v. Commercial Bank, 1885, 27 W. Va. 343; 55 Am. Rep. 315.
2 See Young v. Lehman, 1879, 63 Ala. 519; Wilson v. Alexander, 1842, 4 111. (3 Scam.) 392; Goddard v. Merchants' Bank, 1850, 4 N. Y. 147; Johnston v. Commercial Bank, 1885, 27 W. Va. 343; 55 Am. Rep. 315.
3 "A Summary of Quasi-Contracts," 25 Am. Law Rev. 695, 705.