294 Mass. 335 | Mass. | 1936
This is an action heard upon a case stated, to recover the amount of a deposit made by the plaintiff
The record states that on or about May 20, 1932, the plaintiff opened a savings account in the defendant bank by subscribing her name to the following statement printed on a signature card: “200977. Having deposited a sum of money this day in the Boston Penny Savings Bank, I hereby subscribe to the Regulations and By-Laws and assent to such alterations and amendments thereof as it may at its discretion make, (signed) Miss Rose Tapper”; at the same time she deposited in the defendant bank the sum of $2,043.06 and received a deposit book numbered 200977. So far as material the regulations and by-laws provided that a depositor should receive a pass book as a voucher of his deposit; that “payments” from the deposit could be made only upon presentation of the pass book and entry therein of the withdrawal; and that “payments” upon such presentation should be a discharge to the bank from liability for the amount so paid. On March 15, 1933, the plaintiff delivered the pass book to the Concord Casualty & Surety Company together with a written assignment of her deposit, and an undated withdrawal order slip of the defendant bank signed by the plaintiff and made out in the sum of $1,500. Although the assignment was absolute
During the time that the assignment was in force, the plaintiff’s pass book and signed withdrawal order slip were kept in the office of the casualty company, either in its files or in the manager’s desk. One Rozman, who worked as a salesman for the casualty company upon a commission basis, obtained these documents in some unknown manner without the knowledge or consent of the company. He filled in the date on the withdrawal slip, and on June 6, 1933, forwarded it and the pass book to the defendant bank together with a letter, on the casualty company’s stationery, requesting payment to the company in the amount of the withdrawal order. As a reason for the request he falsely stated in the letter that the casualty company had expended money on behalf of the plaintiff for medical expenses. The letter was signed “William Rozman, Attorney-in-fact.” Upon receipt of this letter the officers of the defendant examined its records and ascertained the genuineness of the plaintiff’s signature on the withdrawal slip. The defendant then drew its check upon The First National Bank of Boston payable to the order of the casualty company in the sum of the withdrawal order less a four cents tax; and the amount of the order was deducted from the plaintiff’s account. The check, enclosed with the bank book, was forwarded to the Boston office of the casualty
It appears that the casualty company and its manager first learned of Rozman’s actions in April, 1935; and the first knowledge the plaintiff had that Rozman had obtained the check and forged the name of the casualty company thereto and received the proceeds thereof was in November, 1934. It was agreed that the plaintiff was not negligent in not learning of said events sooner. No notice was given to or claim made against the defendant by the plaintiff or by anyone in her behalf prior to November, 1934, when she presented the bank book to the bank and demanded pay
The plaintiff does not contend that a payment of cash made by the defendant upon presentation of the pass book, however unauthorized or wrongful, would not constitute a discharge under the by-laws by which she agreed to be bound. In Wasilauskas v. Brookline Savings Bank, 259 Mass. 215, at page 218, it was held that, where one of the by-laws of the defendant provided that “the bank shall not be held responsible for money paid out to any person unlawfully presenting a book,” the by-law “protected the bank if, using reasonable care and in good faith, it paid the money on presentation of the book to one who falsely impersonated the depositor.” It is the contention of the plaintiff, however, that the payment was not made “upon presentation of a deposit book,” but was made against a check to which the indorsement of the payee had been forged or made without authority, and that in these circumstances it did not constitute a discharge of liability for the amount so paid.
G. L. (Ter. Ed.) c. 107, § 45, provides as follows: “Where a signature is forged or made without authority of the person whose signature it purports to be it is wholly inoperative, and no right to retain the instrument, or to give a discharge therefor, or to enforce payment thereof against any party thereto, can be acquired through or under such signature, unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority.” We are of opinion that this contention is sound. Merely by drawing the check the defendant made no present disbursement; and the payee, the casualty company; being ignorant of the transaction, and not being entitled to any payment,.could not have intended to receive it as payment. In these circumstances the transmission of the check did not constitute a payment. Wasilauskas v. Brookline Savings Bank, 259 Mass. 215. Cochrane v. Zahos, 286 Mass. 173, 176. See Ladd v. Augusta Savings Bank, 96 Maine, 510, 518. There is no sound reason
It results that the “finding” of the trial judge must be reversed, and judgment is to be entered for the plaintiff in accordance with the stipulation of the parties in the sum of $1,661.07, with interest from the date of the writ, and costs.
So ordered.