Imagens das páginas

the depositor or his legal representative drawn money

on the first book when she shall lodge with the treasurer a written learned of it, in April, 1902, were among discharge."

the disputed questions of fact at the trial. “Art. 15. This bank will not be respon- The only properly assigned reasons of apsible to any depositor, or to his heirs or peal are the denial of the defendant's moassigns, for any fraud that may be praction for a new trial upon the ground that tised upon any of the officers of this in the verdict was against the evidence, and stitution by forged signatures, or by pre- the failure of the trial judge to charge the senting a depositor's book, and drawing jury in accordance with the specific remoney without the knowledge or consent of quest's set forth in the appeal. The last the owner. And all entries of money paid, reason oi appeal, that "the court erred in made in the depositor's book by an officer charging the jury as certified to in the of the institution, shall be deemed good and printed record,” is not a proper assignment valid evidence of money paid, and shall ex- of error. It fails to point out the particonerate this bank from any liability on ac- ular errors complained of in a charge covercount of any fraud practised in drawing the ing 12 pages of the printed record, and money of any depositor.”

therefore raises no question which this The above facts appear to have been court is bound to review. Gen. Stat. 1902, proved at the trial beyond controversy. $ 802; Hayden v. Fair Haven & W. R. Co.

Whether the officers of the bank exercised 76 Conn. 355-365, 56 Atl. 613; Simmonds reasonable care in issuing the second book, v. Holmes, 61 Conn. 1-9, 15 L. R. A. 253, and in making the payments to Mrs. Keith 23 Atl. 702. upon the first and second book upon the The substance of the several requests forged orders, and whether the plaintiff was contained in the appeal may be fairly stated negligent in failing to keep her first bank as these four requests to charge: First. book in a safe place, and in not notifying that article 15 of the by-laws was sufficient the bank that her daughter had fraudulently authority to the bank for the payments trial court had to inspect the signatures, and failure to do so presents a question as to the also upon the ground that there the person pre- bank's negligence, for the consideration of the senting the book was of the same sex as the jury. And such a fact or circumstance is depositor. Allen v. Williamsburgh Sav. Bank, brought to the attention of the bank's officers 69 N. Y. 314.

when a person unknown to the bank's officers It was also held that, because the bank had presents the pass book, together with a forged stipulated to use its best efforts to prevent paper, apparently a power of attorney, signed fraud, it was proper to refuse to charge that, with the name of the depositor in his individif the hank's officers exercised ordinary care ual capacity, and giving the holder authority to and diligence, and paid in good faith, it was draw all funds to the credit of the depositor as excused; in the Appleby Case, 62 N. Y. 12, executor of an estate mentioned in the instrusupru, also, the contract of the bank did not ment, when the funds actually deposited are call for its best efforts, but only for its “en- to the credit of the depositor as administrator deavor.” Ibid.

of another estate; since the forged paper, alIn regard to the sufficiency of the facts put though it correctly gives the number or the in evidence to show negligence in the defendant pass book, does not relate at all to the deposbank, in a case where the thief produced the it in question, and confers no authority on the book and a check with the forged signature person presenting it to draw the money, this of the depositor, and the cashier paid it after furnishes sufficient grounds for suspicion, and comparing the signature with that of the de

the question of the defendant bank's negligence, positor in the signature book, it was held, upon in an action for the amount paid, should be the question whether the cashier used reason- submitted to the jury. Gearns v. Bowery Sav. able care in the comparison, that what the jury Bank, 135 N. Y. 557, 32 N. E. 249. were to determine was what degree of signif- But where the by-laws provided that payicance would be attached to the diferences ob- ments to persons presenting the book, whether served in the signatures, not by a common per- with or without an order or letter of attorney, son, but by a skilled person such as the cashier purporting to be signed by the depositor, should was; from his examination and cross-examina be deemed good payments to depositors retion a jury could judge not only of what was spectively, and discharge the bank; and pay. the effect upon his mind caused by his compar- ments were made to a man who presented with ing the signatures, but of what would have

the book orders purporting to be signed by the been the effect if he had given due attention to

depositor (who was a woman); and upon the what the dissimilarities indicated. Fricke v.

trial both parties moved for a direction of a German Sav. Bank, 24 Jones & S. 468, 4 N. Y. verdict; and the court made a finding in favor Supp. 627.

of the defendant,--it was held that, it being And if, at the time of the payment of a necessary to take the view of the evidence most savings-bank account, a fact or circumstance is favorable to the defendant, there was nothing brought to the attention of the bank's officers in the evidence or in the attendant circumwhich is calculated and ought to excite the

stances to put the bank upon such notice as to suspicion and inquiry of an ordinarily careful

require it to exercise diligence other than such person as to he identity or authority of the

as would have been required by its rule in cases person making the demand, it is the duty of

where only the deposit book was produced : and the bank to institute such an inquiry, and

hence the finding was not disturbed. Winter v. that, after drawing out the sum deposited by Frank Russell :" and upon this indorsement the her attorney to her credit, she might recover national bank paid the money to the husband, - from the bank the sum which he fraudulently it was held that the savings bank was liable to drew before. The bank, being negligent in makthe depositor for the payment, and hence that ing the payment, always remained her debtor a judgment in her favor should not be dis- for the sum her attorney drew out, and that turbed ; but upon entirely different grounds, one indebtedness could not be discharged by a payof the two justices saying that the question of ment on a forged order and a fraudulent surthe defendant's negligence in delivering the render of the pass book; so when the addicheck to the fraudulent claimant was properly tional sum was deposited by the attorney the submitted to the jury, upon the evidence in the bank owed her the sum of the two amounts, case, the deposit being marked in the pass book and the attorney still owed to the bank the special," and the evidence showing that notice amount he fraudulently drew. Underhill Y. was given to the bank by the depositor to pay | Poughkeepsie Sav. Bank, 32 Hun, 432. to no one but herself ; the other justice, however, declared that the savings bank, by giving



made to Mrs. Keith; second, that the plain-| the depositor, and binding alike upon both. tiff's failure to notify the bank that Mrs. Eaves v. People's Sav. Bank, 27 Conn. 229– Keith bad fraudulently drawn money on | 231, 71 Am. Dec. 59; Donlan v. Provident her deposit book when she first learned of Inst. for Sarings, 127 Mass. 183, 34 Am. that fact prevented the plaintiff from re- Rep. 358; Appleby v. Erie County Sar. covering the sums paid by the bank to Mrs. Bank 62 N. Y. 12. By the language Keith; third, that, if Mrs. Keith obtained of article 13, in the absence of any possession of the deposit book through the modifying agreement the bank carelessness of the plaintiff in her manner thorized to pay deposits and dividends of keeping it, the plaintiff could not re- only to the depositor or his attorney, or, cover the money paid by the bank to Mrs. in case of his death, to his legal representKeith by reason of her possession of the ative; and the bank could not avoid liabilbook; fourth, that the jury would not be ity for payment made upon a forged order justified in finding negligence on the part to one who had fraudulently obtained posof the bank from the mere fact that signa- session of the deposit book, even by showtures of depositors were not kept for the ing that such payment was made in good purpose of comparison, and that the fact faith, and in the exercise of ordinary care, that Mrs. Keith was a daughter of the and in accordance with the general practice plaintiff might be considered as partially among savings banks. Eaves v. People's excusing the officers of the bank for not Sav. Bank, 27 Conn. 229-231, 71 Am. Dec. having exercised greater caution.

59. It was evidently for the purpose of By accepting from the bank and using, relieving the bank from so great a liability as she did, the deposit book, in which arti- that the provisions of article 13 were modicles 13 and 15 of the by-laws were printed, fied by those of article 15. It was undoubt. the plaintiff assented to these regulations, edly learned from experience that the deand they became a part of the contract of positors of a savings bank were so numerdeposit for the protection of the bank and Cous that they could not all be personally Williamsburgh Sav. Bank, 68 App. Div. 193, 74 the plaintiff was entitled to recover against the N. Y. Supp. 140.

savings bank because the national bank had no Where the husband of the depositor present. | right to charge against the savings bank's aced the book at the savings bank, which declined count the money paid on the check, and the to pay until assured by the husband that he savings bank had a good cause of action acted as agent for the wife, whereupon he was against the national bank. Clark v. Saugergiven a check, payable to wife's order, upon a ties Sav. Bank, 62 Hun, 346, 17 N. Y. Supp. national bank, which refused to pay it without 215. the wife's indorsement, and the husband then In a case in which the liability of the bank returned to the savings bank and stated that for making the payment was simply assumed he was authorized to do business for his wife, by the court, where a depositor's attorney drew when an indorsement was written on the check out all her account upon presentation of the by a bank officer in this form : "Ellen Clark, as pass book and a forged order, and later de.


posited in the bank to her credit a less sum, authorized by William X Clark. Witness, and gave her the new pass book, it was held mark

e. Payment without either impersonation or only a check payable to the real depositor,

forgery. which could not be paid without the depositor's indorsement, protected her against payment to The reasonable care the lack of which renders any other person ; but the national bank, in pay.

the bank responsible for payments to frauduing the check without the indorsement of the lent claimants may fail to be exercised in payee, was not authorized to charge the amount other matters than mere identification of the against the savings bank, for the savings bank person presenting the pass book or a check or was not bound by the indorsement, as to which order, or than scrutiny and comparison of the its agent only witnessed and became responsi- signature on the paper presented. So when ble for the genuineness of the mark, and there is no impersonation of the dep lor, and not guarantee that the husband was author- no pretense of presenting genuine paper signed ized by the depositor to act for her; and hence by him, payment by the bank, to one who mere bank representative knew of the death of the tained when the book of deposit is so pro- depositor. According to his testimony the de duced and the money paid entered thereon, un- posit was made with the express understanding less the depositor has given notice to the treas- that any person producing the pass book should urer that said book has been lost or stolen," be entitled to receive the amount of the de. it was held that this stipulation between the posit, and, upon payment, after the death of bank and the depositor did not relieve the bank the depositor, to one of his connections, who from the duty of acting in good faith and with later absconded, it was held that whatever the reasonable care, when the agent, without the agreement was between the depositor and the knowledge of the depositor, abstracted the book

known to its officers, that many of them | 500; Ladd v. Augusta Sav. Bank, 96 Me. were unaccustomed to writing, that they 510, 58 L. R. A. 288, 52 Atl. 1012; Gifford frequently kept their bank books where v. Rutland Sav. Bank, 63 Vt. 108, 11 L. R. they were accessible to others, and that A. 794, 25 Am. St. Rep. 744, 21 Atl. 340 ; therefore in some instances competent offi-| Brown v. Merrimack River Sav. Bank, 67 cers, in the exercise of proper care and N. H. 549, 68 Am. St. Rep. 700, 39 Atl. caution, would fail to detect forgeries and 336; Wegner v. Second Ward Sav. Bank, 76 prevent imposition by persons presenting Wis. 242, 44 N. W. 1096. The by-law in deposit books. It was clearly to protect it- question was therefore not a sufficient auself against losses from such impositions, thority to the bank for payments negligentand not from losses which it was its duty ly made to Mrs. Keith, and the court did to prevent, and which by the exercise of or- not err in not charging the jury in accorddinary care it could prevent, that article ance with the first request. 15 was adopted. By its provisions the Nor did the trial court err in not charging bank was not relieved from its duty to ex- in accordance with the second and third reercise ordinary care to prevent payment to quests. Article 15 furnished a complete dethe wrong person, even though such person fense against liability for payments to Mrs. presented a deposit book, and in accepting Keith made by the bank in the exercise of this regulation the depositor agreed to bear reasonable care. The second and third rethe loss of a payment to the wrong person quests must therefore rest upon the claim presenting the deposit book only to the ex- that, under the doctrine of contributory tent that the bank acted reasonably. Fer- negligence or of estoppel, the defendant guson V. Harlem Sav. Bank, 43 Misc. 10, would not be liable even for payments negli86 N. Y. Supp. 825; Kummei v. Ger- gently made, if it also appeared that the mania Sav. Bank, 127 N. Y. 488, 13 L. R. plaintiff was negligent in not notifying the A. 786, 28 N. E. 398; Sullivan v. Lewiston bank of the fraudulent acts of Mrs. Keith, Inst. of Savings, 56 Me. 507, 96 Am. Dec. I or in not taking proper care of her bank ly pretends to be legally authorized to draw , quiring him to produce evidence of his authorupon the account in question, will be at the ity from the depositor, such as an assignment, peril of the institution.

order, or proof of delivery; and hence the dePayment upon the production of a pass book positor was entitled to the possession of the by the father of the owner of a deposit, when book discharged from the pledge. The stiputhe bank officers know him to be the deposi- i lation between the parties (the court says) tor's father, but he is not his general guardian, does not mean that the bank is absolved from is no protection to the bank, which in so pay- | all obligation of caution. A depositor is a ing does not exercise the ordinary care neces- beneficiary of a fund held by the bank as trustee. sary in making payments, notwithstanding The trustee is incorporated for the purpose stipulations in the by-laws, binding upon the of exercising care in the management and pres. depositor, to the effect that the possession of ervation of deposits. This object would not the book shall be sufficient authority to war- be accomplished by care in the investment of rant payments to the possessor. Ficken v. the fund, and recklessness in paying a depos Emigrants' Industrial Sav. Bank, 33 Misc. 92, to a wrongful possessor of a book.

The 67 N. Y. Supp. 143.

by-law and agreement are to be construed acAnd in

where an agent deposited cording to the authorized business and organic money in a savings bank in the name of the object of the institution. The terms of deposit principal, signing, as agent for the owner, a cannot be understood to make the books pay. certificate which provided that the account able to bearer, like bank bills, without im might be withdrawn by the person who might puting to the trustee a deliberate and studied present the book, or according to the charter attempt to expose beneficiaries to a great and and by-laws as set forth in the book of depos- unnecessary peril of loss, and to deprive them it delivered to the depositor ; and these by-laws of important security which the trustee in the deposit book provided that, “as it will chartered to furnish." Kimball v. Norton, 59 be impossible for the officers of the corporation N. H. 1, 47 Am. Rep. 171. to identify every depositor, the production of And similarly, in two decided cases payments the book of deposit will be held to show that were made under similar circumstances, but the person producing the same is legally au- after the death of the depositor. thorized to receive the deposit; and the cor- in Hunter v. Wallace, 14 U. C. Q. B. 205, the poration will not be responsible for loss sus

bank's officer when the money as deposited, it and presented it to the bank. which took it in was terminated by the death of the depositor, pledge knowing that the pledgeor was not the and the bank was bound, when its officer beapparent owner of the book, and without re- came aware of the death, to retain the money Mahon v. South Brooklyn Sav. Inst. 175 N. Y. When the fraud is perpetrated after the de- 69, 96 Am. St. Rep. 603, 67 N. E. 118, Affirmpositor has died, the rule of liability of the ing 48 App. Div. 218, 62 N. Y. Supp. 961,--bank for its negligence varies, depending in when one by-law printed in a pass book, "althe first place upon the question whether or though the institution will endeavor to prenot tb4 bank had notice of the death.




book. If the question whether the plaintiff by procuring, as she did, by fraud and forwas negligent in these matters were a ma- gery, a new book to be issued? As to the terial one in this case, it may well be plaintiff's alleged carelessness in leaving doubted whether the jury would have been her bank book where Mrs. Keith could objustified in finding, upon the facts, that tain possession of it, it appears that she the exercise of reasonable care by the plain kept it locked with other valuable papers tiff to prevent the bank from being imposed in a bookcase drawer in the hallway on upon required her to

give notice in the second floor of her dwelling, with the April, 1902, of her daughter's fraudulent key in her own sleeping room. Can deacts, or to keep her bank book more secure- positors in savings banks be reasonably rely than she did before she learned that her quired, under ordinary circumstances, to daughter had wrongfully obtained posses- take greater precautions in keeping their sion of it and drawn money upon it. The bank books ? And especially could the plaintiff knew that, by the by-laws of the plaintiff be reasonably expected to take bank, “neither the principal nor interest of greater precautions to prevent her own any deposit” would be paid to any person daughter from obtaining possession of the "unless the depositor's book” should be pre- book before she learned that she had wrongsented. Upon learning of her daughter's fully drawn money upon it? acts she at once put the book where her But without deciding whether there was daughter could not get possession of it. sufficient evidence to go to the jury upon Can it be said that ordinary care required the question of the plaintiff's negligence the plaintiff to anticipate that her daughter, had that been a material inquiry in this case, without having possession of the deposit we hold that the bank would not have been book, might continue to draw her money, | exonerated from liability for payments neg. until some one legaliy authorized should de- , ing taken against itself for the amount.- the mand it.

judgment, being collusive, did not protect the So in Hoffmann v. Union Dime Sav. Inst. 95 bank in its payment, and in an action brought App. Div. 329, 88 N. Y. Supp. 686, Affirming by an ancillary administrator of the depositor, upon this point 41 Misc. 517, 85 N. Y. Supp. 16 later appointed in this state, it was error to (treated infra, IV. f), where a depositor had refuse to allow the plaintiff to go to the jury given her attorney a power of attorney, which on the question of the bank's negligence in he presented after her death with the pass paying the account, as it did. The representabook, and the bank paid without knowledge of tions of the administrator, after he was disthe death, it was held, in spite of the by-law's charged from his trust, to the effect that the provision for discharge for payments to per- payee was entitled to receive the money, could sons producing the pass book with or without have no greater effect than the representations a letter of attorney, that, since the by-laws of a stranger; and, whatever might have been also provided that on the death of any de- the position of the parties if the rule of the positor the amount standing to his credit bank stood alone, that all payments to persons should be paid only to his legal representative. producing the pass book should be valid, unthe payment must be made good to the adminis- deniably the rule, if it was not maãe entirely trator. This decision, however, as based simply inapplicable, was materially qualified by the upon the by-law, seems have been

lorer rule providing that on the death of a de. ruled (except in the opinion of Vann, J.) by positor the amount standing to his credit should KELLEY y. BUFFALO SAV. BANK. (See also, be paid to his legal representative. Farmer v. Farmer v. Manhattan Sav. Inst. 60 Hun, 462, Manilattan Sav. Inst. 60 Hun, 462, 15 N. Y. 15 N. Y. Supp. 235, and Podmore v. South Supp. 235. Brooklyn Sav. Inst. 48 App. Div. 218, 62 N. Y. The

result is reached, on different Supp. 961, Affirmed in 175 N. Y. 69, 96 Am. St. grounds, in Hunter v. Wallace, 14 U. C. Q. B. Rep. S03, 67 N. E. 118, in the following sub-205, supra, IV. e. division.)

And in a case discussed, quoted, and disf. Payment after the death of the depositor. inguished in KELLEY v. BUFFALO SAV. BANK,

vent frauds and impositions, yet all payments So, Uuder by-laws providing in the first to persons producing the pass book issued by place that the officers will endeavor to pre- it shall be valid payments to discharge the vent frauds, but all payments made to any per

institution," immediately followed another proson producing the proper deposit pass book viding that “on the decease of any depositor, shall be good and valid payments, where the the amount standing to the credit of the debank, baving notice of the depositor's death ceased shall be paid to his or her legal repreand the appointment of an administrator in sentatives," --it was held that the one first another state, paid over the amount to a third mentioned applied only to payments made durperson, who had presented the book and an ing the life of the depositor, or, at most, withaffidavit from the administrator that he had out notice of his death, and not when the bank been discharged and that the holder of the knew that he was dead. Hence, the exclusion book was entitled to receive the money; and of evidence, offered by the defendant bank, to the bank assented to a collusive judgment be.

show that the bank exercised due care in maks




ligently made by its officers to Mrs. Keith, | Even if the plaintiff was negligent, as even if the jury could have properly found claimed, that did not excuse the bank officers from the evidence that the plaintiff was from exercising ordinary care to prevent one guilty of the claimed negligence. This is who they knew was not a depositor from not an action based upon the negligence of obtaining money upon a forged order, nor the defendant, in which the plaintiff was re

relieve the bank from liability for payquired to prove that she exercised due care. ments negligently made to the wrong perIt is an action to recover money deposited son. The question of contributory negliby the plaintiff with the defendant, and gence is not involved in the case. If the which the defendant contracted, as declared bank officers failed to exercise ordinary in the deposit book, to repay to the plain care in making the payments to Mrs. Keith tiff, or to her order, or to her legal repre upon forged orders, the bank was liable to sentative, upon presentation of the book. the plaintiff for the sums so paid. If the Eaves v. People's Sav. Bank, 27 Conn. 229– officers exercised such care, the bank was 231, 71 Am. Dec. 59. From its absolute relieved from liability by the provisions of undertaking to pay to the depositor or his article 15 of its by-laws. Geitelsohn V. order, article 15 relieves the bank in cases Citizens' sav. Bank, 17 Misc. 574, 40 N. Y. of payments made in good faith and in Supp. 662; Brown v. Merrimack River Sav. the exercise of ordinary care to persons Bank, 67 N. H. 549, 68 Am. St. Rep. 700, presenting the book, even though such pay 39 Atl. 336; Ladd v. Augusta Sav. Bank, ments are made upon forged orders. As 96 Me. 520, 52 Atl. 1016; People's Sav. we have already shown, no greater protec Ladd v. Androscoggin County Sav. Bank, tion than this was intended to be afforded 96 Me. 520, 52 Atl. 1016; People's Sav. the bank by the provisions of article 15. Bank v. Cupps, 91 Pa. 315. ing the payment, was proper, for the reason covery by the depositor's executor. Donlan v. that the rule of diligence invoked by the bank Provident Inst. for Savings, 127 Mass. 183, 34 applied oply to the case of a living depositor, Am. Rep. 358. and not to the case of a dead one, who was un In Hayden v. Brooklyn Sav. Bank, 15 Abb. able to protect himself.

I'r. N. S. 297, and People v. Third Ave. Sav. The prevailing opinion in KELLEY v. BUFFALO Bank, 98 N. Y. 661 (treated supra, IV. c), inSav. Bank, however (while holding the bank volving the question merely of the requisite liable on account of negligence in failing to com degree of care to be exercised by the bank in pare the signatures in its possession), distin the identification of the person presenting the guishes the Mahon Case upon the ground of pass book, although the payments were made the presence in it of knowledge of the fact of after the death of the depositor, this fact is the death, there being no notice of it in the not treated as in any way affecting the decision.. KELLEY CASE, the bank paying the amount of

g. The obligation to compare the signatures the deposit to a member of the same family.

In Hoffmann v. Union Dime Sav. Inst. 95 It has hitherto probably not been suspected App. Div. 329, 88 N. Y. Supp. 686, Affirming that a savings bank could be discharged in a 41 Misc. 517, 85 N. Y. Supp. 16 (mentioned case not governed by extraordinarily stringent supra, IV. e) the bank was held to be itable, by-laws, from liability for a payment to a though without knowledge of the depositor's fraudulent claimant presenting a forged check, death, for payment to a fraudulent claimant, if it does not avail itself of the means ready and when the by-laws contained the same by-law at hand to discover the fraud, upon a comparioccurring in the Mahon Case and the KELLEY son of the check's signature with the signature CASE, providing that on the death of the de- of the genuine depositor in the books of the positor the amount should be paid to his repre

bank. sentative; but this case is not now authority,

From scores of decisions hitherto presented according to the KELLEY CASE.

this question would appear not to be disputaIn a Massachusetts case, however, going in able; but in some cases it has seemed to be the other direction, when the bank book was necessary to lay down the law in accordance presented to the bank by a stranger after the

with the general notion. death of the depositor, and after the executor

Thus, the supreme court of Maine has dehad issued the usual probate citations, and it clared, in regard to what is reasonable care,

to be exercised by the bank, that it has been dewas paid in good faith by the bank, which

cided that oflicers of a savings bank having kad no actual notice of the death; and it ap

inany thousands of depositors, who make a paypeared that the depositor had subscribed the

ment to a person unknown to them, who claims by-laws printed on the bank book, providing that

to be a depositor, and presents the bank book the institution would not be responsible when

of such depositor, when they have not in their the depositor had not given notice of the book possession, convenient for ready reference and being stolen or lost, and for the consequences of comparison, that depositor's signature, and do any mistake in identity, if it paid to the wrong not obtain from the person presenting the book person upon presentation of the book, --It was his signature for comparison, and do not reheld that the by-laws applied equally to the quire any further proof of identity than the depositor and to his legal representatives ; that possession of the bank book, have not pursued the citation in the probate court did not affect reasonably safe methods of doing business, and the bank with any notice of the death of the de. have not exercised reasonable care to prevent positor: and hence that there could be no rel loss; and, if a comparison of the signature of

« AnteriorContinuar »