123 Mass. 320 | Mass. | 1877
One of the by-laws of the defendant bank provides that, “ as the officers of the institution may be unable to identify every depositor, the institution will not be responsible for any loss sustained, when a depositor has not given notice of his book being stolen or lost, if such book be paid, in whole or part, on presentation.” When the plaintiff made his deposits, he assented to the by-law, and it thus became a part of the contract between the parties. The plain object of this by-law was to exonerate the bank from loss occasioned by the inability of its officers to identify the depositor, and to throw upon the depositor the risk of keeping his book safely.
The presiding judge, who tried the case at bar without a jury, was justified in finding, upon the evidence, that the bank in good faith and without negligence paid the amount which is sued for, upon presentation of the plaintiff’s book, to some person who had stolen or otherwise obtained possession of it, and who fraudulently personated the plaintiff, no notice that the book was stolen having been given* to the bank. This is exactly the case which the by-law was intended to provide for, and the plaintiff cannot recover without a violation of the terms of the contract which the bank made with him. Wall v. Provident Institution for Savings, 3 Allen, 96. Levy v. Franklin Savings Bank, 117 Mass. 448. Exceptions overruled