45 Ga. App. 431 | Ga. Ct. App. | 1932
(After stating the foregoing facts.) “A depositor in a savings bank is bound by the reasonable rules and regulations of the bank to which he assents in writing. A rule providing that ‘ Every effort will be made to protect depositors against fraud, but payment made to a person presenting pass-book shall be good and valid on account of the owner, unless the pass-book has been lost and notice in writing given to [the] bank before such payment is made,’ is reasonable and binding upon depositors. Under the terms of
In the case at bar the undisputed evidence shows that the plaintiff could neither read nor write, that he knew nothing of the printed rules contained in the pass-book, that they were neither read nor explained to him by any official or employee of the bank or anyone else, that he did not sign his name in the pass-book by his mark or otherwise, and that he did not in any way assent to the by-laws and
As in case of other banks, a savings bank, in the absence of any modifying agreement, is authorized to pay deposits only to the depositor or his attorney, or in case of his death to his legal representative, and the bank can not avoid liability for a payment made upon a forged order to one who fraudulently obtained possession of the deposit book, even by showing that such payment was made in good faith and in the exercise of ordinary care and in accordance with the general practice among savings banks. 3 R. C. L. 706, § 337. Mere presentation of the pass-book of the savings bank is not authority for the payment of the money, in the absence of any agreement to that effect. Eaves v. People’s Savings Bank, 27 Conn. 229 (71 Am. D. 59); Smith v. Brooklyn Savings Bank, 101 N. Y. 58 (54 Am. R. 653). In the first case just cited the court said; “Let the rule be inserted in the book and assented to by the depositor, and then it will be a sufficient authority for such a payment.” In the last case just cited, the court held that the “depositor may, by special contract, authorize payments to be made in some other manner than by his directions; but in order to make such payments a protection to the bank, it is necessary for it to show some special agreement with the customer, authorizing such a mode of payment.” The reasonable rules and bjr-laws of a savings bank for withdrawing deposits, if properly made known to the depositor, are part of the contract between him and the bank. Mercantile Savings Bank v. Appler, 151 Md. 571 (135 Atl. 373); Allen v. Williamsburg Savings Bank, 69 N. Y. 314, 321; 2 Morse on Banks & Banking (6th. ed.), § 620. A depositor must have knowledge of, and actually or impliedly assent to, by-laws in order to be bound by them. Wells v. Black, 117 Cal. 157 (48 Pac. 1090, 37 L. R. A. 619, 59 Am. St. R. 162). The depositor is bound by such by-laws by receiving and holding the pass-book with the same printed therein, even without signing the pass-book, if he has actual knowledge thereof. Gifford v. Rutland Savings Bank, 63 Vt. 108 (21 Atl. 340, 11 L. R. A. 794, 25 Am. St. R. 744). “If a savings bank is organized under a general statute, and the profits of the bank belong to its stockholders and not to depositors, a by-law pro-
It is true that there is authority for the proposition that if a depositor accepts and retains a pass-book wherein are printed rules of the savings bank respecting the repayment of the deposit, he is deemed to acquiesce therein and they become a part of the contract
The two Georgia decisions dealt with hereinbefore followed the general rule and are in accordance with Avhat is said above. The banks in those cases were ordinary commercial banks, and the rulings made therein were based upon the fact that the depositors concerned had knowledge of or had assented to the by-laws contained in the pass-books therein involved. These decisions follow the great weight of authority in this country. 3 Morse on Banks & Banking (6th ed.), § 630, note 1; 7 C. J. 869.
It appearing in this case that the plaintiff could neither read nor Avrite, had not assented to the by-law of the bank printed in the pass-book handed him, never had his attention called to the same, and knew nothing of the same in any way; it further appearing that there is a general statute of this State making all deposits in a savings bank payable to the depositors or their legal representatives; and it further appearing that the bank in this case was an ordinary commercial bank, with a savings department, and not a mutual-benefit savings bank, we are of the opinion that this bank could not escape liability to the plaintiff for paying out the amount of his deposit with it to a third person bearing a check Avith the plaintiff’s signature by his mark forged thereto, together with the plaintiff’s pass-book, by reason of the fact that when he made such deposit it handed to him a pass-book with a rule printed therein to the effect that it Avould be protected in paying out deposits to any one presenting the pass-book, when no notice in writing had been given its cashier of the loss or theft of the same. Taking this view, we
It follows that the trial judge erred in overruling the motion for new trial. •
Judgment reversed.