162 Mass. 137 | Mass. | 1894
At the trial, the issue was clearly defined whether the money was paid to Francis, the defendant’s cashier, in his individual capacity, to be used by him individually for the plaintiff, or whether it was paid to him as cashier of the bank, and as and for a deposit in the bank. According to the findings of the jury, the plaintiff deposited his money with Francis, acting as cashier of the defendant bank, and Francis received the same acting in that capacity, and not in his individual capacity. An agreement was made that the money should draw interest, but there was no usage of the bank authorizing the cashier to allow interest on deposits, and the jury allowed none in their verdict. The defendant bank did not actually receive
The scope of the last finding is not clearly defined, but it has not been assumed by counsel on either side that the money was to be invested by the bank at its mere discretion, and without previous directions from or the assent of the plaintiff. The argument for the defendant is that national banks have no authority to deal in stocks or bonds, or to act as brokers or agents for others in the purchase of them; and also that an agreement by the cashier that deposits should draw interest was beyond his authority, and not binding upon the defendant.
Let these positions of the defendant be assumed without discussion to be correct. Assume also that the plaintiff was bound to take notice of the limitation of the power of the bank, and of the authority of the cashier in these respects. It follows certainly that he could not enforce these agreements, but it does not follow that he could not recover back his money without interest, no investment of it having been made for him by the bank or by the cashier.
There is no doubt that the cashier was a proper officer of the bank to receive deposits of money at the bank in its behalf, (Morse on Banking, § 161,) and there was nothing criminal or immoral in either of the agreements made by him. If those agreements were invalid because ultra vires or unauthorized, there certainly would be no reason why the bank should not be held to refund to the plaintiff his money on demand, provided the bank had actually received it. The fact of the cashier’s making the invalid agreements at the time of receiving the deposits would not entitle the bank to retain the money for its own use, or debar the plaintiff from recovering it back.
Nor does the fact that the money, by reason of the cashier’s misappropriation of it, did not actually come to the use of the bank, make any difference. The dealing between the plaintiff and the cashier was at the bank, and it was on the footing that in receiving the money the cashier represented the bank. The money was paid and received as and for money deposited in the bank. Suppose that no agreement as to the future invest
The defendant excepted to the statement by the court that, “ If the directors, through inattention or otherwise, suffered the cashier to pursue and practise a certain line of conduct for a considerable period of time without objection, the bank will be bound by his acts within that line of conduct.” It is not necessary for us to hold that this would be correct as a universal proposition. The defendant’s argument upon it is that the bank would not be bound because of the cashier’s agreement as to investing the money; and the only significance of the instruction was that the bank would be bound, if the directors suffered the cashier to receive money from depositors with an agreement that the same should be invested by the bank in stocks and
The defendant also relies on certain exceptions in matters of evidence.
1. As to the envelope. According to the testimony of the plaintiff and his daughter, this was used and delivered to the plaintiff by the cashier as a statement of the plaintiff’s account in the bank, in like manner as an ordinary bank-book is generally used and delivered. Money was sent by the plaintiff at different times, with slips or tickets addressed to the defendant bank, in substance like ordinary slips or tickets accompanying deposits; and the money was withdrawn on orders addressed to the defendant bank, resembling ordinary checks. The sums so paid in and so withdrawn were entered by the cashier on this envelope, and the entry in one instance was verified by his initials, thus : “ E. S. F., Cas.” There was a statement that interest was to be paid at the rate of four per cent, but no minute of the agreement to invest the money in the future. This envelope was competent as the statement by the proper officer of the bank, made at the time of actual transactions, of the sums received and paid out. There can be no doubt that an ordinary bank-book is competent against a bank for the purpose of showing the state of a depositor’s account. This envelope was admissible in like manner. Morse on Banking, § 108.
2. On the question whether the plaintiff was dealing with Francis as an individual or with him as an officer of the defendant bank, the former transactions were competent, being similar in kind.
3. Although the deponent Parmly, who was out of the State, annexed copies instead of the originals of papers to his deposition, the court in its discretion might allow them to be read. Binney v. Russell, 109 Mass. 55. Williamson v. Cambridge Railroad, 144 Mass. 148.
4. Exhibit 19
5. The testimony of Willis D. Smith was competent, as tending to show not only that the defendant was in the habit of acting for its customers in the purchase of stocks through brokers in Boston and New York, but also that the former dealings of the plaintiff were with the bank, and that the bank kept on its books accounts with the two firms of brokers who on former occasions had bought for the bank the shares for which certificates were by its direction taken in the plaintiff’s name.
6. Testimony to show that the defendant did not enter on its books the plaintiff’s name as a depositor had no legitimate tendency to show that the plaintiff’s transactions were not with the bank. This would at most be an implied denial by the defendant of its liability, in the absence of the plaintiff, who cannot be affected by its omission to make entries on its books. Sanborn v. Fireman's Ins. Co. 16 Gray, 448, 455. Morse v. Potter, 4 Gray, 292, 293.
It is now contended that this evidence was competent, as tending to show that the bank never received the benefit of the plaintiff’s money. Whether this was so or not, the jury found this fact in favor of the defendant, and no exception can now be sustained on this ground to the exclusion of the evidence.
7. The question to the witness Charles C. Francis, who had been a bookkeeper for the defendant, “ whether or not to his
The defendant made a general request for a ruling that, on the whole evidence, the plaintiff could not recover. This ruling was rightly refused. The evidence was sufficient to warrant the verdict for the plaintiff.
On an examination of the whole case, the trial appears to have been well conducted, and we find no error in any of the rulings which were excepted to. Exceptions overruled.
Exhibit 19 was as follows : “ Pittsf’d, Mass., Aug. 26, 1891. Received of Lee, Higginson, & Co., Certificate No. 25925 for Three -3- Shares
Willis D. Smith testified that he was the bookkeeper of the defendant bank in the years 1892 and 1893; that the bank had accounts with brokers in New York and Boston, who bought and sold stocks for its customers if ordered through the bank; that these brokers were Marquand and Parmly in New York, and Lee, Higginson, and Company in Boston; and that the books of account with the brokers showed that, on February 24, 1891, the bank bought five shares, and on August 26,1891, three shares, of Boston and Albany Railroad stock, through Lee, Higginson, and Company, and on December 24,1891, bought thirteen shares of “ C., B. & Q.” stock through Marquand and Parmly. It appeared by the evidence of these brokers that the certificates for these shares of stock were taken, by the bank’s directions, in the plaintiff’s name.
