Kimins v. Boston Five Cents Savings Bank

141 Mass. 33 | Mass. | 1886

W. Allen, J.

The only defence is, that the defendant bank was authorized to make the payments to the plaintiff’s nephew on the forged orders and the presentation of the deposit-book. The authority, if it existed, must have been given by the plaintiff when she made the contract of deposit, or must have arisen from an estoppel worked by her subsequent conduct. The facts stated do not show an estoppel, and the ruling of the court that the plaintiff could not recover must have been on the ground that the contract authorized the payments. By the contract, the plaintiff agreed to be governed by the by-laws of the bank, and the by-laws were contained in the deposit-book given to her.

By the by-laws as they existed at the time the contract was signed by the plaintiff, the bank had no authority to make the payments. They authorized a payment to one who falsely personated the depositor in presenting the stolen book; Goldrick v. Bristol County Savings Bank, 123 Mass. 320; but not to one who falsely claimed to act under authority from the depositor. Jochumsen v. Suffolk Savings Bank, 3 Allen, 87. Levy v. Franklin Savings Bank, 117 Mass. 448.

The defendant does not dispute its liability, if the case is to be determined on the construction of the by-law in force when the contract was made; but it contends that the by-law of 1875 became incorporated into the contract between the parties, and a part of it. If this was so, it would have given the defendant authority to make the payments. Donlan v. Provident Institution for Savings, 127 Mass. 183.

No notice was given to the plaintiff of this by-law, and she had no knowledge of it, and the deposits made after it was passed must be taken to have been made under the original contract.

The defendant contends that the subsequent by-law became part of the contract of deposit, by force of the Gen. Sts. c. 57, § 147, (Pub. Sts. e. 116, § 29,) which provided that the deposits might be withdrawn at such time and in such manner as the corporation in its by-laws directed, and of the by-law existing when the contract was made, which provided for making changes in the by-laws, with the plaintiff’s agreement to abide by the regulations of the institution as expressed in its by-laws.

The authority of the defendant to make by-laws regulating the time and manner in which deposits might be withdrawn did not empower it to change, without the consent of the plaintiff, a contract it had made with her, nor to discharge the debt to-her by payment to a stranger; nor was it any part of the plaintiff’s contract that the defendant might do this. See Donlan v. Provident Institution for Savings, ubi supra.

The by-law in question is not one which merely concerns the regulations of the institution as to the time and manner of paying deposits to depositors. It materially affects the contract of deposit in the interest of the bank, and not of the depositor; and, if it applies to contracts made before it was passed, it authorizes the bank to pay the money of depositors to those not authorized by the contract to receive it, and to relieve the bank from its obligation to pay it to the depositors. Authority to make such a material change in the contract, without the knowledge of the plaintiff, cannot be inferred from her agreement to abide by the regulations of the institution.

Exceptions sustained.