A-12388, MAY 3, 1926, 5 COMP. GEN. 886

A-12388: May 3, 1926

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- INDORSEMENT MERE POSSESSION OF A GOVERNMENT CHECK WHICH HAS NOT BEEN INDORSED BY THE PAYEE IS NOT SUFFICIENT EVIDENCE OF A CLAIM AGAINST THE UNITED STATES TO AUTHORIZE PAYMENT OF THE CHECK TO THE HOLDER THEREOF. WHICH ARE PRESENTED. CERTIFY THAT WE ARE AWARE AND KNOW THAT THE FIRM OF B.B. WE HAVE ASSISTED IN AN ATTEMPT TO LOCATE THE WHEREABOUTS OF THE ABOVE-MENTIONED PARTIES. THE FIRMS AS WELL AS OUR EFFORTS HAVE BEEN UNSUCCESSFUL. WE DO NOT KNOW AND DO NOT BELIEVE THAT ANYONE WITH WHOM WE ARE IN TOUCH KNOWS THE PRESENT WHEREABOUTS OF SAID PARTIES. WE HAVE SET OUR SEAL THIS 12TH DAY OF DECEMBER. THEY DO NOT STATE UPON WHAT FACTS OR CIRCUMSTANCES THEIR KNOWLEDGE IS PREDICATED. FROM WHOM THE CHECKS WERE RECEIVED.

A-12388, MAY 3, 1926, 5 COMP. GEN. 886

CHECKS--- INDORSEMENT MERE POSSESSION OF A GOVERNMENT CHECK WHICH HAS NOT BEEN INDORSED BY THE PAYEE IS NOT SUFFICIENT EVIDENCE OF A CLAIM AGAINST THE UNITED STATES TO AUTHORIZE PAYMENT OF THE CHECK TO THE HOLDER THEREOF.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 3, 1926:

CONSIDERATION HAS BEEN GIVEN TO REQUEST OF THE FIRM OF B.B. SHIMONOWSKY AND BROTHER, DATED MARCH 16, 1926, THAT IT BE AUTHORIZED TO INDORSE AND COLLECT THREE CHECKS, WHICH ARE PRESENTED, ISSUED BY H. E. MITCHELL, SPECIAL DISBURSING AGENT, UNITED STATES VETERANS' BUREAU, WHIPPLE BARRACKS, ARIZONA, UNDER SYMBOL 11286, TO HANS HOEFT, VICENTE CHACON, AND JAY C. GOOCH, FORMER EMPLOYEES OF THE UNITED STATES VETERANS' BUREAU, FOR SALARY TO DATE OF RESIGNATION, IN THE AMOUNTS OF $8, $4.80, AND $6.13, RESPECTIVELY.

NONE OF THE ABOVE-DESCRIBED CHECKS BEAR THE INDORSEMENT OF THE PAYEE. CLAIMANT STATES THAT DILIGENT EFFORT TO LEARN THE PRESENT ADDRESSES OF THE PAYEES HAS NOT BEEN SUCCESSFUL, AND SUBMITS AN AFFIDAVIT AS FOLLOWS:

WE, HEREBY, CERTIFY THAT WE ARE AWARE AND KNOW THAT THE FIRM OF B.B. SHIMONOWSKY AND BROTHER HAS RECEIVED CHECKS:

NO. 25125 IN FAVOR OF HANS HOEFT

26496 IN FAVOR OF VICENTE CHACON

26498 IN FAVOR OF JAY C. GOOCH TO APPLY ON ACCOUNT AND ENDORSEMENT HAVING BEEN OMITTED, WE HAVE ASSISTED IN AN ATTEMPT TO LOCATE THE WHEREABOUTS OF THE ABOVE-MENTIONED PARTIES, AND THE FIRMS AS WELL AS OUR EFFORTS HAVE BEEN UNSUCCESSFUL.

WE DO NOT KNOW AND DO NOT BELIEVE THAT ANYONE WITH WHOM WE ARE IN TOUCH KNOWS THE PRESENT WHEREABOUTS OF SAID PARTIES.

IN WITNESS, WHEREOF, WE HAVE SET OUR SEAL THIS 12TH DAY OF DECEMBER, 1924.

(SIGNED) L. C. LEACH.

(SIGNED) CHAS. GILBERT.

SUBSCRIBED AND SWORN TO BEFORE ME.

(SIGNED) H. A. M. BOTHE.

NOTARY PUBLIC.

MY COMMISSION EXPIRES OCTOBER 27, 1928.

THE AFFIANTS AVER THEY KNOW THAT THE FIRM OF B.B. SHIMONOWSKY AND BROTHER RECEIVED THE CHECKS IN QUESTION TO APPLY ON ACCOUNT. THEY DO NOT STATE UPON WHAT FACTS OR CIRCUMSTANCES THEIR KNOWLEDGE IS PREDICATED, FROM WHOM THE CHECKS WERE RECEIVED, THE CONDITIONS UNDER WHICH THEY WERE RECEIVED, OR UPON WHOSE ACCOUNT OR ACCOUNTS THEY WERE TO BE APPLIED.

THE EVIDENTIARY VALUE OF AN EX PARTE AFFIDAVIT, AT BEST, IS WEAK AND ALTHOUGH THE ALLEGATIONS IN THE AFFIDAVIT HERE PRESENTED BE ACCEPTED AS TRUE, THEY DO NOT ESTABLISH FACTS SUFFICIENT TO SHOW ON THE PART OF THE PAYEES OF THE CHECKS THE ACT OF, OR THE INTENT TO, MAKE THE CLAIMANT OWNER OF THE CHECKS; NOR DO THE ALLEGATIONS SHOW EVEN AN ORAL POWER OF ATTORNEY BY THE PAYEES AUTHORIZING CLAIMANT TO INDORSE SAID CHECKS FOR THEM. COSMOPOLITAN TRUST CO. V LEONARD WATCH CO., 143 N.E. 827.

IT APPEARS TO HAVE BEEN DUE TO THE NEGLIGENCE OF THE CLAIMANT OR HIS AUTHORIZED AGENT THAT THE CHECKS WERE ACCEPTED WITHOUT INDORSEMENT, AND, WHILE NOT HERE MATERIAL, IT MAY BE PROPER TO STATE THAT CLAIMANT'S REMEDY, IF ANY, WOULD SEEM TO BE AGAINST THE PAYEES OF THE CHECKS. MARLING V FITZ GERALD, 138 WIS. 93, 120 N.W. 388; PLANTERS BANK AND TRUST COMPANY V YELVERTON, 117 S.E. 299.

IN THE ABSENCE OF SATISFACTORY EVIDENCE SHOWING THAT THE PAYEES TRANSFERRED THE CHECKS TO THE CLAIMANT AND AUTHORIZED IT TO INDORSE FOR THEM, MERE POSSESSION OF THE UNINDORSED CHECKS--- THE HOLDER BEING A MERE EQUITABLE ASSIGNEE (SALEM V BANK OF STATE OF NEW YORK, 97 N.Y.S. 361; SCHOEPFER V TOMMACK, 97 ILL. APPS. 562/--- VESTS IN THE HOLDER NO LEGAL CLAIM AGAINST THE UNITED STATES REQUIRING SETTLEMENT BY THIS OFFICE. LAWRENCE, FIRST COMPTROLLER'S DECISIONS, 455; III ID. 18; 9 COMP. DEC. 663.

ACCORDINGLY, UPON THE RECORD PRESENTED, PAYMENT OF THE CHECKS IN QUESTION IS NOT AUTHORIZED AND THEY WILL ACCORDINGLY BE RETURNED TO THE CLAIMANT WITHOUT PREJUDICE TO SUBMIT CLAIM TO THIS OFFICE FOR CONSIDERATION AT THE PROPER TIME UNDER THE PROVISIONS OF SECTIONS 306, 307, AND 308 OF THE REVISED STATUTES OF THE UNITED STATES.