21 Ohio C.C. (n.s.) 38 | Ohio Ct. App. | 1914
The defendant in error, who was plaintiff below and whose correct name is Jon Ceregut,.but whose name was written Jon Cereguti in the second pass book, hereinafter referred
The defendant below admitted that it conducted a commercial and savings bank and that the deposits were made in its savings department pursuant to certain rules and regulations, among which were the following:
“4. Deposits and the interest thereon may be withdrawn by the depositor in person, or by written order, but in either case, the pass book must be presented -that such payments may be entered therein.
“5. . As the officers of the company may be unable to identify every depositor, the company will not be responsible for loss sustained where a depositor has not given notice of his or her book being stolen or lost, if such book be paid in whole or in part on presentation.
“6. In all cases the payment upon presentation of a deposit book shall be a discharge to the company for the amount paid.”
On June 11, 1908, an account was opened by plaintiff, in the name of Jon Ceregut, who gave his address as 1979 Central avenue, and pass book 2507, containing its rules and- regulations in the usual form, was issued and delivered by defendant to him, and deposits were made and entered in said pass book from time to time and interest
At the time of the making of the first deposit the depositor signed a signature card by making his X-mark thereon, his name and the words “his mark” having been written on the line opposite the printed word “signature,” together with the statement “to be paid when witnessed by one witness.”
The rules of the company provide that the depositor by signing the signature card thereby assents to the rules and regulations of the company. While the proof fails to show that all of these rules and regulations were made known to or explained to him, he would no doubt be held to be bound by them so far as would an ordinary depositor who could read and write.
No part of this deposit was drawn out until August 11, 1909, when a draft in favor of the Capital National Bank of Indianapolis for $1,600, purporting to be signed on its face by Jon Ceregut, his X-mark, and endorsed on the back “Witness to mark G. F. Patterson,” together with a collection form-slip from said Capital National Bank, accompanied by said pass book Number 2507, were received by the defendant, apparently in the ordinary course of business. The defendant, believing that said signatuure by mark to the draft was genuine, because it was attested by the signature of a person who was then shown in the bank directory to be the cashier of said bank, and supposing that the officer of the Capital Bank who signed as a witness to the mark had satisfied himself as to the identity of the maker of the draft,
It appears that the plaintiff below was a foreigner, a native of Roumania, who was extremely illiterate, could not speak or understand English, but onfy Roumanian and a little German, and was unable to either read or write the German or the English language; that he was introduced at the bank at the time he made this deposit by one of its own officers named Landesco, with whom he had become acquainted, and that the initial deposit in this bank was a withdrawal from another bank. It appears that he was in the habit of keeping his pass book locked up in his trunk in the room in which he slept, which was also occupied by at least three other foreigners. It also appears that on August 5, 1909, a pass book, No. 3534, was issued by the defendant below, in the name of Jon Cereguti, in which was credited a deposit of $2; that this pass book came into the possession of plaintiff and that on December 26, 1909, a deposit of $271, and on January 10, 1910, a deposit of $30, were credited in this book. It was not until January, 1910, that plaintiff below learned that the amounts credited to him in pass book No. 2507 had been paid out by the bank. It seems that he desired to again transfer his account from the bank of the defendant company below and deposit it in an
The case was tried to a jury and resulted in a verdict for the plaintiff, upon which verdict a judgment was afterwards entered by the court.
The principles of law involved in this case are laid down and decided in the case of The Hough Ave. Savings & Banking Co. v. Andersson, 78 Ohio St., 341, which is practically decisive of this case. It was there held that the fact of negligence by the bank was properly submitted to and found by
The draft, the payment of which defendant relies upon, was signed by mark. G. F. Patterson, who witnessed the mark, admits that he made no investigation as to the identity of the man, who was simply introduced to him by a man of whom he knew nothing. The signature card containing plaintiff’s mark, held by the* bank, contained the express provision requiring his signature by mark to be identified by one witness. That certainly meant that the identifying witness must be one who knew the identity of the man who made the mark, otherwise there would be no, security in having a witness at all.
The genuineness of the signature must be proved. 1 Greenleaf on Evidence, Sec. 558. And one who alleges a signature by mark has the burden of proof. Abbott’s Brief, Proof of Facts (2 ed.), 461. Under the conditions of the deposit in this case it was essential to the validity of the signature by mark that it be witnessed by a person knowing the identity of the man signing, and a signature by mark must be proved as any other signature. 36 Cyc., 455, and cases cited.
In this case there is no question of the fact that plaintiff deposited his money in the bank, and no
In our opinion the answers made to the interrogatories by the jury are supported by the evidence. We find no error in the refusal by the court of the special charges relied upon by the defendant, and we do not believe that the record shows any prejudicial error in the statements made by cotinsel for plaintiff which are claimed by defendant to have constituted misconduct on his part.
A careful review of the record fails to show any prejudicial error, and the judgment is affirmed.
Judgment affirmed.