Opinion
Argued January 15, 1874
Decided May term, 1874
Geo. Putnam Smith for the appellant. Horace Graves for the respondent.
On the 21st of August, 1869, the plaintiff deposited with the defendant's bank $100, upon the conditions indicated by a pass-book, delivered to her when the deposit was made. The plaintiff was a German by birth, and, it is said, could not read the English language, in which the rules and regulations of the defendant's bank were printed. She, as appears to have been customary, when the deposit was made, gave the bank her signature and received the usual pass-book. Among the rules and regulations printed in the pass-book, and under which the deposit was made, it was declared that "no depositor shall be paid all or any part, either principal or interest, without producing the pass-book and having such payments entered therein."
It was further provided that, "all deposits shall be entered in the books of the corporation, and a pass-book shall be given to the depositor, in which the sum deposited by him shall be entered, and which shall be his voucher and the evidence of his property in the institution."
It was further added that, "the secretary will use his best efforts to prevent fraud, but all payments made to persons producing the deposit book shall be deemed good and valid payments to depositors, respectively."
The question arose upon the validity of a payment of sixty dollars made by the bank on the 27th of September, 1869, to a person who appeared at the bank with the plaintiff's pass-book in his possession, with an order purporting to have been signed by the plaintiff, directing the payment of that amount; and this order was claimed to have been a forgery, and the transaction by which the sixty dollars was obtained a fraud upon the plaintiff; and so the jury have found upon instructions which we shall not find it necessary to consider.
The only question considered on the trial, or passed upon by the jury, was, whether the order upon which the sixty dollars was paid was or was not a forgery; and I think we are relieved from considering the question, argued at the bar, whether the plaintiff knew or was able to understand the conditions upon which the deposit of her money with the defendant was made. We must assume, as was assumed on the trial, that she did understand the nature and effect of her contract with the defendant; and being obliged by the verdict of the jury to regard the payment of the sixty dollars to have been made upon a forged order, we have only to consider the legal effect of the contract upon which the deposit was made in the particular aspect in which the case is presented upon the record.
According to the contract between the parties, it was agreed that the depositor should be paid no money, either principal or interest, without producing the pass-book and having the payments entered therein. It seems quite obvious that this was not only very reasonable, but entirely free from any legal objections. The bank ought not to be required to make payments save on the production of the pass-book, as evidence of the right of a party to receive the money deposited. Without some such voucher it is difficult to see how any savings bank could protect itself from imposition; and it seems very clear that the party receiving the voucher should be charged with the duty of reasonable diligence, at least in its preservation. I do not discover that the bank can be properly charged with any want of diligence or any omission of duty in making the payment which provokes this controversy. It was made to a person having possession of the pass-book; and by the contract it was agreed that "all payments made to persons producing the deposit books shall be deemed good and valid payments to depositors, respectively." In addition, the party receiving the money, presented what purported to be the written order of the plaintiff; and I do not discover that there was anything in the nature of the transaction to indicate that the order was a forgery, as, upon somewhat questionable evidence, the jury have found.
If we are to pay any regard to the obligation of contracts, the bank should be discharged by the payment made upon the production of the pass-book and order. Such is the contract to which the plaintiff agreed, and she must be held to all the consequences. It was her misfortune that her pass-book was purloined, or her name forged to an order for the payment of money, if that be, as is found, the real fact. The defendant was charged with no duty in respect to the custody of the pass-book; nor do I see that it was at all material to the defendant whether the order was a forgery or not. The defendant was at liberty to pay the amount of the deposit to any person who presented the pass-book; no order of the depositor was required. A forged order while, ordinarily, of no legal effect, was at least equal to no order at all; so that, it appears to me, the bank had the right to make the payment it did, on the simple production of the pass-book.
The question whether the order was forged or not was wholly immaterial; and the judgment below should be reversed and a new trial granted, with costs to abide the event.
All concur, except DWIGHT, C., not voting.
Judgment reversed.