228 Mass. 556 | Mass. | 1917
The rights of the parties apart from the equitable defence depend on the terms of the contracts that were made, as shown by the record, when the accounts were opened. Wall v. Provident Institution for Savings, 6 Allen, 320. Wallace v. Lowell Institution for Savings, 7 Gray, 134, 137. White v. Franklin Bank, 22 Pick. 181. Heath v. New Bedford Safe Deposit & Trust Co. 184 Mass. 481, 483.
In the first case it is unnecessary to decide whether the bank would have been exonerated if article one of the by-laws had been inserted in the contract, that, “When any money is withdrawn, the book given to the depositor must be brought to the Bank to have the amount entered therein. If the book has been lost or destroyed, written notice must be given to the Treasurer, and if the loss shall be proved to the satisfaction of the Board of Investment, they may direct the account to be paid without the book; but the Institution will not be responsible for loss sustained if payment is made on
What has been said also disposes of the defence urged in the second case, where the contract and deposit were made on July 6, 1898, and the by-law that, "Any payment made to any person who presents a deposit book of this Bank, or who shall present an order for the payment of money accompanied with such deposit book purporting to have been signed by the person to whom such book belongs, shall be deemed to be for the Bank as good and effectual a payment as that made to the owner of such deposit book,” was passed on February 4, 1903, by which the plaintiff, who had no knowledge of it was not bound, and the original contract remained unaffected.
It is further contended, that the plaintiff is estopped by its neg
But the judge found generally for the plaintiff. The remissness of the auditors is not evidence of the plaintiff’s participation in the treasurer’s fraud, and as matter of law it furnishes no justification to the defendants to deprive the plaintiff of its property through honoring forged orders. Atlantic Cotton Mills v. Indian Orchard Mills, 147 Mass. 268, 281.
But, if the defence of payment and of estoppel fall away, the defendants also severally answered, that it would be inequitable to permit the plaintiff to recover, and that they should be absolutely and unconditionally relieved from the respective claims. R. L. c. 173, § 28. And, no question having been raised as to whether an equitable defence had been pleaded properly, the presiding judge ruled that the plaintiff’s demands should be reduced proportionally, to which rulings the plaintiff excepted. The forged orders on both banks aggregated $3,345, of which the defaulting treasurer used or appropriated $250, the remaining $3,095 was deposited by him in the plaintiff’s name and to its credit in the Millbury National Bank. The judge found and ruled that of the total amount the plaintiff could recover only $250. The method by which the embezzlement was accomplished is described as follows: “Bazinet embezzled from the plaintiff money which he collected from members and other income of the society to an amount at least equal to the sums which he withdrew from the defendant bank. The sums thus collected and embezzled were not deposited to the credit of the society. By using the money withdrawn from the defendant bank to pay the obligations of the plaintiff, Bazinet was enabled to postpone the time when his embezzlements would be
It is unnecessary to determine whether the defendants could have pleaded in set-off for money had and received. See Foote v. Cotting, 195 Mass. 55, 63. The plaintiff did not demur to the equitable defence, that the remedy at law was plain and adequate, and it is plain that the defendants could have maintained a bill for an accounting in which relief could have been given by a money decree. Newell v. Hadley, 206 Mass. 335. Bremer v. Williams, 210 Mass. 256. The defendants therefore can avail themselves of this defence, under which a double amercement is averted, with full satisfaction of the plaintiff’s contractual demands. We have examined all of the alleged errors, and, finding no grounds for reversal, the exceptions of each party should be overruled.
So ordered.