Appeal, No. 152 | Pa. | Nov 6, 1893
Lead Opinion
Opinion by
William Kerr, the plaintiff, is a farm laborer near Elizabeth, in Allegheny county. On the 27th of December, 1888, he gave to his brother, Varner Kerr, $100 to deposit it for him, William, in bank in McKeesport. Varner took the money, went to the People’s Bank, McKeesport, deposited it, and had it entered in a pass book. The bank indorsed the book on the back thus: “ The People’s Bank, McKeesport, Pa. In account with William Kerr, Elizabeth.” The account on the inside of the book was opened thus: “The People’s Bank, McKeesport, Pa. In account with William Kerr, by Varner Kerr, Dr., Dec. 27, 1888, cash $100.” Three other deposits were subsequently made, as follows : Jan. 15, 1889, $100 ; April 12, 1889, $200 ; Sept. 10, 1889, $219 ; making altogether $619 ; each deposit being made by Varner Kerr, the money being given to him by William for that purpose. William Kerr asked Varner to put the money in the bank for him, and Varner said he would. William could neither read nor write, but more than once Varner exhibited the book to him and said it was all right, but Varner kept possession of the book until a short time before commencement of this suit.
From the date of the first deposit down to January, 1891, Varner, by fourteen checks ranging from ten dollars up to $100, at different dates, drew from the bank the whole $619, and lost the money in gambling speculations. But four of the checks were produoed at the trial, and they are signed “ W. Kerr,” but in the handwriting of Varner Kerr. It is alleged by the bank,
The defendant’s assignments of error are six in number, but are all, in substance, embraced in the first, which complains that the court refused to affirm its second point, as follows:
“ That if the jury believe that the plaintiff placed his money in the hands of Varner Kerr to place the same in some bank, and he did place the same in defendant’s bank in the name of William Kerr, the plaintiff, and under an arrangement with the bank he should draw the money, and the bank had no knowledge of the plaintiff, and the money was withdrawn by Varner Kerr under an arrangement made by the depositor, Varner Kerr, then the verdict should be for the defendant.”
We think the court was right in refusing'this instruction. The point asks that the jury shall draw a conclusion from facts, which, standing alone, do not warrant it. It was not important that the bank should have knowledge of William Kerr; acquaintance with or knowledge of him affected not his right nor its liability. Did the bank know it was his money which Varner deposited ? If it did, that determined its duty and his right; the duty of safekeeping, his right to payment on proper demand. The money was William’s; he gave it to Varner to deposit in the bank; until that was done, William took all the risk of Varner’s Ohonesty; he might have appropriated it before he
It is argued, William could not have been deceived by the pass book, for he could neither read nor write. It is probable he did not know accurately the indorsements on the book and the entries in it. His brother several times exhibited it to him, and he knew it contained the evidence of the deposit of the money. But the question is not, just how much did he certainly know, but what did the bank know, for it could both read and write the entries establishing his right to the money it had accepted on deposit. As to what was said when the account was opened, the cashier, Mr. Pitts, testifies: “ He, Varner, said he wished to put the money in the name of William Kerr and that he would make additional deposits, and would withdraw it, and that he would have entire charge of the account, and of course we asked no further questions; if we hadn’t taken the money some other bank would.” At that very time, Varner had an account in his own name in the same bank. This money was accepted and entered not in Varner’s, but in William’s name ; the pass book was delivered crediting it to him ; William’s residence and post office indorsed on back of the book. Having thus expressly accepted and acknowledged it as William’s money, where is the authority to pay to Varner? 'If William had given a check for the money to one not known to the bank, it would have required evidence of the genuineness of -the drawer’s signature and of the identity of the payee before parting with it; the payee’s mere declaration would hardly have been satisfactory. Yet, on the mere declaration of authority by one man, he is given unlimited power to check out another’s money. That this was William’s money, is not disputed ; that the bank knew it is clearly proven; it follows, then, that Varner had no more right, because he carried it there, to check it out without authority from William, than one who had no connection with the matter ; his mere declaration is entitled to no more weight against the clear legal right of the owner than that of the errand boy who is intrusted with his emploj^er’s pass book and money for the purpose of deposit. Th,e addition
The assignments of error are overruled, and the judgment is affirmed.
Dissenting Opinion
dissenting:
I concur in the statement of the law in the opinion of the court, but it does not seem to me to meet the facts of this case. The question of liability does not .depend on the fact that the money was William Kerr’s or even that the bank had notice of his title, but on the agreement under which the bank received it. It is admitted that the money was in Varner Kerr’s hands, and that he could dictate the terms on which he would deposit it. He could have put it in his own name, absolutely or as agent or trustee as he pleased. What he did was to deposit it in the name of William Kerr, “by Varner Kerr,” and with the express agreement that he was to have entire charge of the account, to make deposits and to withdraw them. Presumably he would not have parted with the money on any other terms. The bank did not know William in the transaction except by Varner, and as William by trusting him with the money had put it in his power to make the terms he did, the bank ought not to be liable in damages for keeping its agreement. It was legally bound to do so until it had notice in fact that Varner’s authority had been exceeded or revoked.