189 Mass. 542 | Mass. | 1905
The defendant, as a banking corporation, held money belonging to the plaintiff as a depositor. It paid a note of $157.12, made by the plaintiff, and afterward refused to pay the amount to the plaintiff, or to account for it, otherwise than by claiming credit for it as properly paid to the holder. This note was one of four, given for the same sum by the plain-' tiff to one Adams. After giving it, the plaintiff compromised with his creditors by the payment of a percentage of his indebtedness, which he gave to Adams upon these notes. He received from Adams, in return, a release under seal of all claims and demands. These notes were payable at the City National Bank in Worcester, and the plaintiff notified the cashier of that bank, after the settlement, not to pay any of his notes that might be presented, without first notifying him. Three of these notes were afterward presented for payment at the bank, and payment was refused. Before the fourth became due, the defendant “ took over the property and assets and assumed the liabilities including that of the plaintiff, of the City National Bank, which at that time went into liquidation.” The accounts of the City National Bank were transferred to the defendant, including a deposit of $201.10 belonging to the plaintiff, and the following
The case was heard in the Superior Court upon an agreed statement of facts, the substance of which is given above. This was the form of the agreement: “ The following are agreed to be all the facts and may be used in the trial of- the case of Elliott v. Worcester Trust Company, so far as they are material and competent under the pleadings.” Generally the submission of a case upon agreed facts waives all questions of pleading. Brettun v. Fox, 100 Mass. 234. But by this agreement the parties have limited themselves to a consideration of only such matters as are pertinent under the pleadings. See Esty v. Currier, 98 Mass. 500, 502; Commonwealth v. Worcester & Nashua Railroad, 124 Mass. 561. Treating the defendant’s argument on this point as open to it, we are of opinion that the declaration is broad enough to justify the different claims that the plaintiff makes. The first count is for money had and received
If we consider the case in reference to the deposit transferred to the defendant from the City National Bank, we find that the defendant succeeded to the rights of that bank and acquired no additional rights. In taking over the deposit, it took it with the same obligations to the plaintiff that its predecessor was under, one of which was not to pay out this money or any part of it on his old notes, without obtaining authority from him. The statement stamped in the deposit book recognized the same obligation. The money was “ to be held by it as a deposit, upon the same terms as it was held by the City National Bank.” Under this contract, the defendant had . no right to pay this note. It was bound to know the terms under which the deposit was held by its predecessor.
If we look at the relations of the parties in regard to deposits subsequently made, we reach the same result. There was an implied understanding that the defendant should pay the plaintiff’s checks drawn on the account, and notes made by him payable at its banking rooms. Carr v. National Security Bank, 107 Mass. 45, 48. But this would not include notes made long
It is contended that the defendant has the rights of a bona fide purchaser for value before maturity, and that it is a holder in due course, within the meaning of R. L. c. 73, §§ 69-76. But no such contention is open under the pleadings. The answer is a general denial and a plea of payment. The defendant has not filed a claim in set-off, nor made any averment of ownership of the note. At maturity the note was presented by the holder for payment, the defendant assumed to pay it as the plaintiff’s agent, and in that capacity received it as a paid note for delivery to its principal, the maker. The rights of the defendant in this action, under its plea of payment of the money deposited, depend upon the question whether it had authority from the plaintiff to make this payment. This case is quite unlike Manufacturers’ National Bank v. Thompson, 129 Mass. 438, which was an action brought upon a promissory note indorsed in blank by the holder of it.
Nor- can the defendant prevail upon its defence that the plaintiff did not return the note before bringing the suit. The note was voluntarily put into his possession, with cancelled checks, as a paper which had ceased to be of value. The delivery was not made in the execution of a contract in reference to the note, or as a part of any transaction to which the plaintiff was a party, and with which the note was connected. It was not necessary for the plaintiff to rescind the contract, or to do anything to change the existing legal relations between the parties, before demanding his money and suing to recover it. If the defendant had demanded the note of the plaintiff and he had refused to deliver it before bringing his suit, a different question would have been presented. But even then, if the collection of the note was made by the Quinsigamond National Bank as the agent of Adams, and not as owner — and there is nothing to show the contrary — it is at least doubtful whether it would have been the plaintiff’s duty to return it. However that may
Judgment for the plaintiff affirmed.