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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."
"Art. 15. This bank will not be responsible to any depositor, or to his heirs or assigns, for any fraud that may be practised upon any of the officers of this institution by forged signatures, or by presenting a depositor's book, and drawing money without the knowledge or consent of the owner. And all entries of money paid, made in the depositor's book by an officer of the institution, shall be deemed good and valid evidence of money paid, and shall exonerate this bank from any liability on account of any fraud practised in drawing the money of any depositor."
the disputed questions of fact at the trial. The only properly assigned reasons of appeal are the denial of the defendant's motion for a new trial upon the ground that the verdict was against the evidence, and the failure of the trial judge to charge the jury in accordance with the specific requests set forth in the appeal. The last reason of appeal, that "the court erred in charging the jury as certified to in the printed record," is not a proper assignment of error. It fails to point out the particular errors complained of in a charge covering 12 pages of the printed record, and therefore raises no question which this court is bound to review. Gen. Stat. 1902, § 802; Hayden v. Fair Haven & W. R. Co. 76 Conn. 355-365, 56 Atl. 613; Simmonds v. Holmes, 61 Conn. 1-9, 15 L. R. A. 253, 23 Atl. 702.
The substance of the several requests contained in the appeal may be fairly stated as these four requests to charge: First. that article 15 of the by-laws was sufficient authority to the bank for the payments failure to do so presents a question as to the bank's negligence, for the consideration of the jury. And such a fact or circumstance is brought to the attention of the bank's officers when a person unknown to the bank's officers presents the pass book, together with a forged paper, apparently a power of attorney, signed with the name of the depositor in his individual capacity, and giving the holder authority to draw all funds to the credit of the depositor as executor of an estate mentioned in the instrument, when the funds actually deposited are to the credit of the depositor as administrator of another estate; since the forged paper, although it correctly gives the number of the pass book, does not relate at all to the deposit in question, and confers no authority on the person presenting it to draw the money, this furnishes sufficient grounds for suspicion, and the question of the defendant bank's negligence, in an action for the amount paid, should be submitted to the jury. Gearns v. Bowery Sav. Bank, 135 N. Y. 557, 32 N. E. 249.
But where the by-laws provided that payments to persons presenting the book, whether with or without an order or letter of attorney, purporting to be signed by the depositor, should be deemed good payments to depositors respectively, and discharge the bank; and payments were made to a man who presented with the book orders purporting to be signed by the depositor (who was a woman); and upon the trial both parties moved for a direction of a verdict and the court made a finding in favor of the defendant,-it was held that, it being necessary to take the view of the evidence most favorable to the defendant, there was nothing in the evidence or in the attendant circumstances to put the bank upon such notice as to require it to exercise diligence other than such as would have been required by its rule in cases where only the deposit book was produced; and hence the finding was not disturbed. Winter v.
The above facts appear to have been proved at the trial beyond controversy.
Whether the officers of the bank exercised reasonable care in issuing the second book, and in making the payments to Mrs. Keith upon the first and second book upon the forged orders, and whether the plaintiff was negligent in failing to keep her first bank book in a safe place, and in not notifying the bank that her daughter had fraudulently trial court had to inspect the signatures, and also upon the ground that there the person presenting the book was of the same sex as the depositor. Allen v. Williamsburgh Sav. Bank, 69 N. Y. 314.
It was also held that, because the bank had stipulated to use its best efforts to prevent fraud, it was proper to refuse to charge that, if the bank's officers exercised ordinary care and diligence, and paid in good faith, it was excused; in the Appleby Case, 62 N. Y. 12, supru, also, the contract of the bank did not call for its best efforts, but only for its "endeavor." Ibid.
In regard to the sufficiency of the facts put in evidence to show negligence in the defendant bank, in a case where the thief produced the book and a check with the forged signature of the depositor, and the cashier paid it after comparing the signature with that of the depositor in the signature book, it was held, upon the question whether the cashier used reasonable care in the comparison, that what the jury were to determine was what degree of significance would be attached to the differences observed in the signatures, not by a common person, but by a skilled person such as the cashier was; from his examination and cross-examina tion a jury could judge not only of what was the effect upon his mind caused by his comparing the signatures, but of what would have been the effect if he had given due attention to what the dissimilarities indicated. Fricke v. German Sav, Bank, 24 Jones & S. 468, 4 N. Y. Supp. 627.
And if, at the time of the payment of a savings-bank account. a fact or circumstance is brought to the attention of the bank's officers which is calculated and ought to excite the suspicion and inquiry of an ordinarily careful person as to the identity or authority of the person making the demand, it is the duty of the bank to institute such an inquiry, and
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. 229Keith had fraudulently drawn money on 231, 71 Am. Dec. 59; Donlan v. Provident her deposit book when she first learned of Inst. for Savings, 127 Mass. 183, 34 Am. that fact prevented the plaintiff from re- Rep. 358; Appleby v. Erie County Sav. 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 relieving the bank from so great a liability that the provisions of article 13 were modified by those of article 15. It was undoubtedly learned from experience that the depositors of a savings bank were so numerous that they could not all be personally
By accepting from the bank and using, as she did, the deposit book, in which articles 13 and 15 of the by-laws were printed, the plaintiff assented to these regulations, and they became a part of the contract of deposit for the protection of the bank and
the plaintiff was entitled to recover against the savings bank because the national bank had no right to charge against the savings bank's ac count the money paid on the check, and the savings bank had a good cause of action against the national bank. Clark v. Saugerties Sav. Bank, 62 Hun, 346, 17 N. Y. Supp. 215.
Williamsburgh Sav. Bank, 68 App. Div. 193, 74
Where the husband of the depositor presented the book at the savings bank, which declined to pay until assured by the husband that he acted as agent for the wife, whereupon he was given a check, payable to wife's order, upon a national bank, which refused to pay it without 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 dehis 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 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 disfor 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 amo he fraudulently drew. Underhill v. 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 only a check payable to the real depositor, which could not be paid without the depositor's indorsement, protected her against payment to any other person; but the national bank, in paying the check without the indorsement of the payee, was not authorized to charge the amount against the savings bank, for the savings bank was not bound by the indorsement, as to which its agent only witnessed and became responsible for the genuineness of the mark, and did not guarantee that the husband was authorized by the depositor to act for her; and hence
e. Payment without either impersonation or forgery.
The reasonable care the lack of which renders the bank responsible for payments to fraudulent claimants may fail to be exercised in other matters than mere identification of the person presenting the pass book or a check or order, or than scrutiny and comparison of the signature on the paper presented. So when there is no impersonation of the depositor, and no pretense of presenting genuine paper signed by him, payment by the bank, to one who mere
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 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. or in not taking proper care of her bank
Nor did the trial court err in not charging
quiring him to produce evidence of his authority from the depositor, such as an assignment, order, or proof of delivery; and hence the depositor was entitled to the possession of the book discharged from the pledge. The stipu
Payment upon the production of a pass book by the father of the owner of a deposit, when the bank officers know him to be the deposi-lation between the parties (the court says) tor's father, but he is not his general guardian, is no protection to the bank, which in so paying does not exercise the ordinary care necessary in making payments, notwithstanding stipulations in the by-laws, binding upon the depositor, to the effect that the possession of the book shall be sufficient authority to warrant payments to the possessor. Ficken v. Emigrants' Industrial Sav. Bank, 33 Misc. 92, 67 N. Y. Supp. 143.
“does not mean that the bank is absolved from all obligation of caution. A depositor is a beneficiary of a fund held by the bank as trustee. The trustee is incorporated for the purpose of exercising care in the management and preservation of deposits. This object would not be accomplished by care in the investment of the fund, and recklessness in paying a deposit to a wrongful possessor of a book. . . The by-law and agreement are to be construed according to the authorized business and organic object of the institution. The terms of deposit cannot be understood to make the books payable to bearer, like bank bills, without im puting to the trustee a deliberate and studied attempt to expose beneficiaries to a great and unnecessary peril of loss, and to deprive them of important security which the trustee was chartered to furnish." Kimball v. Norton, 59 N. H. 1, 47 Am. Rep. 171.
And similarly, in two decided cases payments were made under similar circumstances, but after the death of the depositor.
And in a case where an agent deposited money in a savings bank in the name of the principal, signing, as agent for the owner, a certificate which provided that the account might be withdrawn by the person who might present the book, or according to the charter and by-laws as set forth in the book of deposit delivered to the depositor; and these by-laws in the deposit book provided that, "as it will be impossible for the officers of the corporation to identify every depositor, the production of the book of deposit will be held to show that the person producing the same is legally authorized to receive the deposit; and the corporation will not be responsible for loss sustained when the book of deposit is so produced and the money paid entered thereon, unless the depositor has given notice to the treasurer that said book has been lost or stolen,"it was held that this stipulation between the bank and the depositor did not relieve the bank from the duty of acting in good faith and with reasonable care, when the agent, without the knowledge of the depositor, abstracted the book and presented it to the bank, which took it in pledge knowing that the pledgeor was not the apparent owner of the book, and without re
In Hunter v. Wallace, 14 U. C. Q. B. 205, the bank representative knew of the death of the depositor. According to his testimony the deposit was made with the express understanding that any person producing the pass book should be entitled to receive the amount of the deposit, and, upon payment, after the death of the depositor. to one of his connections, who later absconded, it was held that whatever the agreement was between the depositor and the bank's officer when the money was deposited, it was terminated by the death of the depositor, and the bank was bound, when its officer became aware of the death, to retain the money
ly pretends to be legally authorized to draw upon the account in question, will be at the peril of the institution.
book. If the question whether the plaintiff was negligent in these matters were a material one in this case, it may well be doubted whether the jury would have been justified in finding, upon the facts, that the exercise of reasonable care by the plaintiff to prevent the bank from being imposed upon required her to give notice in April, 1902, of her daughter's fraudulent acts, or to keep her bank book more secure ly than she did before she learned that her daughter had wrongfully obtained possession of it and drawn money upon it. The plaintiff knew that, by the by-laws of the bank, "neither the principal nor interest of any deposit" would be paid to any person "unless the depositor's book" should be presented. Upon learning of her daughter's acts she at once put the book where her daughter could not get possession of it. Can it be said that ordinary care required the plaintiff to anticipate that her daughter, without having possession of the deposit book, might continue to draw her money, until some one legaliy authorized should demand it.
So in Hoffmann v. Union Dime Sav. Inst. 95 App. Div. 329, 88 N. Y. Supp. 686, Affirming upon this point 41 Misc. 517, 85 N. Y. Supp. 16 (treated infra, IV. f), where a depositor had given her attorney a power of attorney, which he presented after her death with the pass book, and the bank paid without knowledge of the death, it was held, in spite of the by-law's provision for discharge for payments to persons producing the pass book with or without a letter of attorney, that, since the by-laws also provided that on the death of any depositor the amount standing to his credit should be paid only to his legal representative. the payment must be made good to the administrator. This decision, however, as based simply upon the by-law, seems to have been ruled (except in the opinion of Vann, J.) by KELLEY V. BUFFALO SAV. BANK. (See also, Farmer v. Manhattan Sav. Inst. 60 Hun, 462, 15 N. Y. Supp. 235. and Podmore v. South Brooklyn Sav. Inst. 48 App. Div. 218, 62 N. Y. Supp. 961, Affirmed in 175 N. Y. 69, 96 Am. St. Rep. 203, 67 N. E. 118, in the following subdivision.)
f. Payment after the death of the depositor.
When the fraud is perpetrated after the depositor has died, the rule of liability of the bank for its negligence varies, depending in the first place upon the question whether or not the bank had notice of the death.
by procuring, as she did, by fraud and forgery, a new book to be issued? As to the plaintiff's alleged carelessness in leaving her bank book where Mrs. Keith could obtain possession of it, it appears that she kept it locked with other valuable papers in a bookcase drawer in the hallway on the second floor of her dwelling, with the key in her own sleeping room. Can depositors in savings banks be reasonably required, under ordinary circumstances, to take greater precautions in keeping their bank books? And especially could the plaintiff be reasonably expected to take greater precautions to prevent her own daughter from obtaining possession of the book before she learned that she had wrongfully drawn money upon it?
So, under by-laws providing in the first place that the officers will endeavor to prevent frauds, but all payments made to any person producing the proper deposit pass book shall be good and valid payments, where the bank, baving notice of the depositor's death and the appointment of an administrator in another state, paid over the amount to a third person, who had presented the book and an af davit from the administrator that he had been discharged and that the holder of the book was entitled to receive the money; and the bank assented to a collusive judgment be
But without deciding whether there was sufficient evidence to go to the jury upon the question of the plaintiff's negligence had that been a material inquiry in this case, we hold that the bank would not have been exonerated from liability for payments neging taken against itself for the amount.- -the judgment, being collusive, did not protect the bank in its payment, and in an action brought by an ancillary administrator of the depositor, later appointed in this state, it was error to refuse to allow the plaintiff to go to the jury on the question of the bank's negligence in paying the account, as it did. The representations of the administrator, after he was discharged from his trust, to the effect that the payee was entitled to receive the money, could have no greater effect than the representations of a stranger; and, whatever might have been the position of the parties if the rule of the bank stood alone, that all payments to persons producing the pass book should be valid, undeniably the rule, if it was not made entirely inapplicable, was materially qualified by the later rule providing that on the death of a depositor the amount standing to his credit should be paid to his legal representative. Farmer v. Manhattan Sav. Inst. 60 Hun, 462, 15 N. Y. Supp. 235.
The same result is reached, on different grounds, in Hunter v. Wallace, 14 U. C. Q. B. 205, supra, IV. e.
And in a case discussed, quoted, and distinguished in KELLEY V. BUFFALO SAV. BANK,Mahon v. South Brooklyn Sav. Inst. 175 N. Y. 69, 96 Am. St. Rep. 603, 67 N. E. 118, Affirming 48 App. Div. 218, 62 N. Y. Sup 961,when one by-law printed in a pass book, “although the institution will endeavor to prevent frauds and impositions, yet all payments to persons producing the pass book issued by it shall be valid payments to discharge the institution," immediately followed another providing that "on the decease of any depositor, the amount standing to the credit of the deceased shall be paid to his or her legal representatives," it was held that the one first mentioned applied only to payments made during the life of the depositor, or, at most, without notice of his death, and not when the bank knew that he was dead. Hence, the exclusion of evidence, offered by the defendant bank, to show that the bank exercised due care in mak
ligently made by its officers to Mrs. Keith,
ing the payment, was proper, for the reason that the rule of diligence invoked by the bank applied only to the case of a living depositor, and not to the case of a dead one, who was unable to protect himself.
The prevailing opinion in KELLEY V. BUFFALO SAV. BANK, however (while holding the bank Hiable on account of negligence in failing to compare the signatures in its possession), distinguishes the Mahon Case upon the ground of the presence in it of knowledge of the fact of the death, there being no notice of it in the KELLEY CASE, the bank paying the amount of the deposit to a member of the same family.
In Hoffmann v. Union Dime Sav. Inst. 95 App. Div. 329, 88 N. Y. Supp. 686, Affirming 41 Misc. 517, 85 N. Y. Supp. 16 (mentioned supra, IV. e) the bank was held to be able, though without knowledge of the depositor's death, for payment to a fraudulent claimant, when the by-laws contained the same by-law occurring in the Mahon Case and the KELLEY CASE, providing that on the death of the depositor the amount should be paid to his representative; but this case is not now authority, according to the KELLEY CASE.
In a Massachusetts case, however, going in the other direction, when the bank book was presented to the bank by a stranger after the death of the depositor, and after the executor had issued the usual probate citations, and it was paid in good faith by the bank, which had no actual notice of the death; and it appeared that the depositor had subscribed the by-laws printed on the bank book, providing that the institution would not be responsible when the depositor had not given notice of the book being stolen or lost, and for the consequences of any mistake in identity, if it paid to the wrong person upon presentation of the book, it was held that the by-laws applied equally to the depositor and to his legal representatives; that the citation in the probate court did not affect the bank with any notice of the death of the depositor: and hence that there could be no re
Even if the plaintiff was negligent, as claimed, that did not excuse the bank officers from exercising ordinary care to prevent one who they knew was not a depositor from obtaining money upon a forged order, nor relieve the bank from liability for payments negligently made to the wrong person. The question of contributory negli gence is not involved in the case. If the bank officers failed to exercise ordinary care in making the payments to Mrs. Keith upon forged orders, the bank was liable to the plaintiff for the sums so paid. If the officers exercised such care, the bank was relieved from liability by the provisions of article 15 of its by-laws. Geitelsohn v. Citizens' Sav. Bank, 17 Misc. 574, 40 N. Y. Supp. 662; Brown v. Merrimack River Sav. Bank, 67 N. H. 549, 68 Am. St. Rep. 700, 39 Atl. 336; Ladd v. Augusta Sav. Bank, 96 Me. 520, 52 Atl. 1016; People's Sav. Ladd v. Androscoggin County Sav. Bank, 96 Me. 520, 52 Atl. 1016; People's Sav.
covery by the depositor's executor. Donlan v. Provident Inst. for Savings, 127 Mass. 183, 34 Am. Rep. 358.
In Hayden v. Brooklyn Sav. Bank, 15 Abb. Pr. N. S. 297, and People v. Third Ave. Sav. Bank, 98 N. Y. 661 (treated supra, IV. c), involving the question merely of the requisite degree of care to be exercised by the bank in the identification of the person presenting the pass book, although the payments were made after the death of the depositor, this fact is not treated as in any way affecting the decision.. g. The obligation to compare the signatures
It has hitherto probably not been suspected that a savings bank could be discharged in a case not governed by extraordinarily stringent by-laws, from liability for a payment to a fraudulent claimant presenting a forged check, if it does not avail itself of the means ready and at hand to discover the fraud, upon a comparison of the check's signature with the signature of the genuine depositor in the books of the
From scores of decisions hitherto presented this question would appear not to be disputaable; but in some cases it has seemed to be necessary to lay down the law in accordance with the general notion.
Thus, the supreme court of Maine has declared, in regard to what is reasonable care, to be exercised by the bank, that it has been decided that officers of a savings bank having many thousands of depositors, who make a payment to a person unknown to them, who claims to be a depositor, and presents the bank book of such depositor, when they have not in their possession, convenient for ready reference and comparison, that depositor's signature, and do not obtain from the person presenting the book his signature for comparison, and do not require any further proof of identity than the possession of the bank book, have not pursued reasonably safe methods of doing business, and have not exercised reasonable care to prevent loss; and, if a comparison of the signature of