instruments which prove to have been counterfeited or forged as to the signature of any maker, drawer, issuer, endorser, assignor, lessee, transfer agent or registrar, acceptor, surety or guarantor or as to the signature of any person signing in any other capacity or raised or otherwise altered or lost or stolen * * *
'Mechanically reproduced facsimile signatures are treated the same as handwritten signatures.'
Defendants have moved to dismiss the action on the following grounds:
1. The complaint fails to state a claim against defendants upon which relief can be granted.
2. The complaint fails to state a claim which falls within the coverage of paragraph E of the bond sued upon.
The parties have stipulated as follows: '* * * the amount at issue in this action is $ 43,632.32. The only matter therefore left for decision of the Court in this case is the questions of law raised by the pleadings. (sic) Upon determination of those questions the Court shall enter a final judgment in behalf of the successful party, which judgment shall be immediately appealable.'
The invoices in question were represented as duplicate copies of original instruments evidencing accounts receivable. They were false documents the making and use of which were intended to defraud. Within the terms of the bond plaintiff 'extended credit on the faith of' or 'otherwise acted upon' them.
Admittedly, the signatures on the assignments were genuine and the invoices required no signature. It is therefore concluded that the phrase 'forged as to signature' does not apply. The issue thus resolves itself into the question of whether or not the invoices involved may properly be termed 'counterfeited' within the meaning of the bond.
'Counterfeit' has been defined in Law Dictionary & Pronunciations by James A. Ballentine, 1948 Edition, as follows:
'Counterfeit -- The fabrication of a false image or representation. In its broadest sense, to counterfeit means to make a copy without authority or right and with a view to deceive or defraud by passing the copy as original or genuine. But as ordinarily understood in law, the term is confined to the making and uttering of false money, or the forging of bank notes which are the equivalent of money.'
In 1 Bouv.Law Dict., Rawles Third Revision, the following definition of 'Counterfeit' is set forth:
'To make something false in the semblance of that which is true. It always implied a fraudulent intent. It refers usually to imitations of coin or paper money.'
Webster's New International Dictionary, Second Edition, 1955, defines 'counterfeit' as follows:
'That which is made in imitation of something, with a view to deceive; a forgery; as a counterfeit of a bank note.
'2. That which represents or is like another thing; a likeness, a portrait; a counterpart; a copy. (Archaic).
'3. (Obs.) a. one who pretends to be what he is not; an imposter. b. An unnatural or misshapen person. c. a counterfeiter.
'Syn. -- Counterfeit, Forgery. Counterfeit is used chiefly of imitations of coin, paper money, or securities depending upon pictorial devices or engraved designs for identity or assurance of genuineness. Forgery is more properly applied to the fraudulent making of a written or printed document; or to a fraudulent imitation of it or change in it.'
In view of the specific treatment of 'counterfeit' as to currency, government bonds, etc. in clauses (F) and (G) of the contract, the term 'counterfeited' as used in clause (E) is interpreted as applicable to 'written instruments' other than currency, etc. Unless, further, it is to be given application in a sense other than 'forged as to signature', it must be deemed meaningless and mere surplusage. This Court is of the opinion that the invoices in question were 'counterfeited written instruments' according to the meaning of the term as the parties intended to be bound by it in clause (E) of the indemnity bond. To conclude otherwise would be to give no effect whatever to the use of the word 'counterfeited'. See Metropolitan National Bank of Minneapolis v. National Surety Co., D.C.Minn.1931, 48 F.2d 611; Security National Bank of Durand v. Fidelity & Casualty Company of New York, 7 Cir., 1957, 246 F.2d 582; Fitzgibbons Boiler Co. v. Employers' Liability Assurance Corp., Ltd., 2 Cir., 1939, 105 F.2d 893.
In accordance with the stipulation of counsel, judgment will be entered as on motion for summary judgment, in favor of the plaintiff and against the defendants in the amount of $ 43,632.32, together with costs.
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