172 Pa. 197 | Pa. | 1896
Opinion by
In his statement filed, plaintiff bases his claim on substantially the following averments of fact: (1) That on May 24, 1887, he duly remitted by mail to defendant bank for deposit to his credit, $745 in currency, and $640 in properly indorsed checks, which currency and checks, together with a letter of same date to the bank and a certain promissory note, were in
“Red Lion, York County, Pa. May 24, 1887.
“ Western National Bank, York, Pa. Gent. — Enclosed find note. Currency $745.00. Checks $640.00.
“ Resp’y. J. A. Miller.”
(2) That on the following day, May 25,1887, he received by mail from defendant bank a communication returning his said letter and promissory note, and nothing else. Said communication was written on the returned letter, by the cashier of defendant bank, informing plaintiff that the accompanying promissory note had not been indorsed by him and requesting him to indorse and return it. The following is a copy of what the cashier thus wrote:
“ Note not endorsed by you. Endorse and return.
“Very Resp. C. E. Lewis, Cash.”
(3) That said currency and checks, amounting to $1,385, were received by the defendant bank on the 24th day of May, 1887, but it failed, neglected and refused to give plaintiff credit therefor or for any part thereof, etc.
The defendant bank, in its affidavit of defense, denies that it ever received said $745 in currency, and $640 in checks, or any part thereof, by mail or otherwise, and also denies that plaintiff, on May 24, 1887, or at any other time, wrote and mailed to it a letter such as the copy contained in his statement ; but, on the contrary it avers that on May 14,1887, plaintiff mailed a letter to defendant which, without more, read thus: “ Gent. — Enclosed find note. Resp. J. A. Miller ; ” that said letter did contain a note which defendant believed plaintiff intended should be discounted for him and proceeds passed to his credit, but, said note not being indorsed, defendant bank wrote at the end of said letter the words: “ Note not endorsed by you. Endorse and return. Very Res. C. E. Lewis, Cash1,” and remailed the same to plaintiff; that said letter, thus returned to plaintiff by mail on or about May 14, 1887, did not contain the words and figures: “ Currency $745.00. Checks $640.00,” either at the time it was received by the defendant bank or when it was returned by mail to plaintiff, etc.
It is not our purpose to review the testimony bearing on the questions involved in the issue. It is sufficient to say that it presented questions of fact which were clearly for the exclusive determination of the jury. The case was submitted to them with full and adequate instructions as to the facts that must be found by them before they would be warranted in rendering a verdict in favor of plaintiff. After commenting on the testimony relied on by the parties, respectively, the learned trial judge said, among other things : “ the facts of this case are in a very small compass. We have the evidence of the plaintiff accompanied by this letter, (referring to his letter of May 24, 1887) and very largely based upon it, that he sent the amounts stated therein to the bank for deposit; and we have the evidence of the cashier that it was not so received, and that it was unaccompanied by any deposit when he received it, and that it did not bear upon its face any reference to any deposit of any amount. And then we have these statements to the plaintiff, and his acquiescence in the settlement of his account by the bank down to the bringing of this suit, with the exception of those two letters. As I told you in the beginning, the cen tral fact — the central question in this case is whether that deposit was made; and that is entirely dependent upon this letter, its genuineness and its present altered or unaltered condition.”
In answering defendant’s second point, referring to the letter, he said: “ if the date of the paper when received at the bank was May 14,1887, and if that date has been changed to May 24, 1887, by the plaintiff, or with his knowledge, procure-
Again, in affirming defendant’s third point, he explicitly charged: “ That unless the jury are satisfied from the evidence that on the 24th of May, the alleged deposit in currency and checks was received by the defendant, as averred by the plaintiff .... in his statement, the verdict must be for defendant.”
Under these and other instructions, quite as favorable to the defendant bank as they should have been, the verdict for plaintiff was rendered, subject to the question of law reserved. The verdict thus rendered necessarily implies a finding by the jury of each and every material fact relied on by the plaintiff, as above stated, including, of course, the main fact that the money and checks, amounting to $1,385, were remitted to and received by the defendant bank on or about May 24,1887, as averred in his statement. For the purposes of this appeal these facts must be regarded as having been conclusively established by the verdict ; and the sole question is whether, in view of the facts thus established, the court was warranted in reserving the question and afterwards entering judgment thereon for the defendant, non obstante veredicto, solely for the reason that no formal demand was made by plaintiff before he brought suit. If the relation of depositor and dejmsitee had been admitted, or established by the verdict, it cannot be doubted that ho action could have been maintained by the depositor until a formal demand had been made by him or waived by the bank. The principle applicable in such cases is too well recognized to require either argument or citation of authority; but, as Ave have seen, that is not this case. As to the currency and checks, in question, —the only items of claim and subjects of controversy in this
But, assuming that this position is either doubtful or untenable, and that it was incumbent on the plaintiff to prove, inter alia, that demand was made, or that it was waived by the bank, or that the necessity for demand was obviated or dispensed with by unequivocal acts of the bank which were tantamount to an express waiver, can there be any doubt that the latter alternative was conclusively established by uncontradicted evidence to which some reference has been made? We think not.
While the duties of depositor and depositee are, as a general
In Heard v. Lodge, supra, it was said: “ It is a fundamental principle that the necessity for a formal demand is often waived or obviated by the conduct of the other party, or when the state of the case is such as to show that a demand would have been unavailing. It is peculiarly true in a case where the party wholly denies the right of him who seeks performance.” “If the bank, by words or conduct, denies the depositor’s right to his balance, it becomes presently liable to an action without formal demand, and interest would be recoverable as damages: ” Thompson’s Natl. Bank Cases, 263.
There is no sounder maxim than that upon which all the foregoing and other so-called exceptions to the general rule, as to demand, are founded : “ The law compels no one to do vain or useless things.” According to the positive and uncontradicted evidence in this case, in connection with the facts conclusively established by the verdict, it would have been an utterly vain and useless thing for the plaintiff to have made a formal demand on defendant bank before bringing suit. The necessity for such demand was clearly obviated by the unequivocal acts and dec
If there was any question as to the regularity or validity of the verdict, — whether it was against the weight of the evidence, or contrary to the charge, etc., the proper forum for that was the court below. From the fact that defendant’s rule for new trial, etc., was discharged, it may be inferred that the verdict was satisfactory to the court. Whether that was so or not, is not a matter for our consideration. As an approved verdict, we must accept, as verity, the findings of fact of which it is necessarily predicated.
It follows from what has been said that the question of law reserved: “ Whether the plaintiff, not having shown or proved any demand and refusal before suit brought for the value of the deposit, is entitled to recover in this suit, if otherwise entitled to recover ? ” — is irrelevant and immaterial, and judgment for the defendant, non obstante veredicto, was unwarranted. Both assignments of error are therefore sustained.
Judgment reversed, and judgment is now entered in favor of the plaintiff on the verdict for $1,385, the amount found by the jury, with interest from date of the verdict.