147 Mich. 437 | Mich. | 1907
The defendant, having a savings deposit standing on its boobs in the name of Fannie Slater, to whom it had issued a pass book, in conformity to the custom of the bank, refused to pay the amount in its hands to her administrator, unless he should produce the pass boob, or
Counsel’s brief does not point out the assignments of error relied on, as required by Supreme Court Rule No. 40. Its discussion is confined to the question:
“ Whether, under the circumstances, the cashier was justified in requiring security against loss to the bank before paying the money to the plaintiff.”
To determine this question we must look to the findings of fact to ascertain the circumstances. According to the findings, Fanny Slater became a depositor in the defendant’s bank on August 20, 1883, receiving a pass book from the savings department, and continued a depositor to the time of her death, on June 6,1905. Her balance on deposit on February 6, 1906, was $530.75. The last deposit of principal made by her was November 15, 1887. The last withdrawal of cash was December 30, 1903. Immediately after her death her friends took charge of her home and made search for valuables. Repeated searches have failed to find the bank book. Vincent was appointed administrator of her estate on August 25, 1905. After demand of the balance he showed defendant’s officers a certified copy of his letters of administration, and tendered a properly executed check, signed by him as administrator, for the balance. Defendant’s officers acknowledged that the bank had the deposit, but refused to pay over the balance unless plaintiff should execute and deliver to the bank a bond to indemnify the bank against loss and expense on account of any demand that might thereafter be made by a claimant who should produce the book. The defendant claims that its by-laws and the statute under which it was organized justify the refusal, and preclude plaintiff’s recovery in this action.
That a pass book shall be issued containing the rules and regulations, and no payment or check against the savings deposit shall be made, unless accompanied by, and entered upon, the pass book, except for good cause, and on assurances satisfactory to the officers of the hank. Section 6117.
The following rules were in force and printed on the pass book:
“Rule 8. It shall be the duty of the cashier to receive all deposits and payments of money to the bank and to pay out all sums of money properly drawn by depositors and enter the same in the books of the bank and for such purpose he shall see that proper receipts are given to the bank for all payments and that each depositor’s name is properly signed in the signature book of the bank.
“He shall deliver to each depositor a pass book, in which the sum paid or received by him shall be entered, and which shall be his or her voucher and the evidence of his or her property in the institution.
“Rule 13. On making the first deposit, the depositor shall be required to subscribe his or her name in the signature book of the institution, thereby signifying his or her assent to the regulations and by-laws of the bank.
“Rule 17. * * * Money shall only be drawn out by the depositor, or some person legally authorized by said depositor; but no person shall receive any part of his or her principal or interest without producing the original book, that such payment may be entered therein.
“ Rule 19. On the decease of any depositor the amount standing to the credit of the deceased shall be paid to his or her legal representatives when legally demanded.
“Rule 31. The cashier will endeavor to prevent frauds, but all payments made to persons producing a deposit book or duplicates thereof shall be deemed good and valid payments to the depositors respectively.”
Ostrander, J. I think the judgment should be affirmed. Section 611?, 2 Comp. Laws, is a part of a statute regulating the business carried on by banks organized under the laws of this State. The statute is penal (section 610?), and the provisions here in question require banks receiving savings deposits to refuse to pay them, even to the owner, unless the pass book is produced, except for good cause and on assurances satisfactory to the officers of the hank. The reason for this legislation is not, perhaps, important here, although it must be assumed that the reason was not mere convenience of the bank. A bank, like any other debtor, can discharge its debt by paying it to the creditor or to some person by his order. It will not be required to pay the debt a second time simply because it violated the statute at the time of making the first payment. If the bank is charged with violation of the statute in paying a deposit without having the pass book presented, its defense — excuse—must be accepted or rejected in view of all the circumstances disclosed. “Good cause” and “satisfactory assurance” must be determined, not by the officers of the bank, but by judicial triers. So, when it asserts, as reason for nonpayment- of a deposit, the nonproduction of the pass book, the insufficiency of the cause shown and of the assurances offered, the question is one for judicial triers. The facts that the depositor is dead, that the demand is made by a duly qualified administrator of the depositor’s estate, that the pass book is not negotiable, that no other demand is made, that several months have intervened the death and the demand, and, last but not least, that, so far as discharging the debt is concerned, payment to the depositor, with no notice of an assignment of the debt, would protect the bank, are all of them-facts to be used in
Rules of a bank are usually adopted for the convenience of the bank: Undoubtedly, the rules of the defendant bank are evidence of the contract between the depositor and the bank. Rule 17, if literally enforced, would deprive a depositor of his money, if he could not produce his pass book. The case of a lost or misplaced book is not provided for in the rules. No one will assert that, if a pass book is produced, no duty rests upon the bank to use some care to ascertain that it is produced by a person having the right to the deposit. So that, notwithstanding the rule, mere production of the pass book will not require the bank to pay to the holder. An assignee of the debt — of the deposit — must, in any case, produce evidence of the assignment to himself. If rule 17, treated as a part of a contract between bank and depositor, is unreasonable as applied to the case of a lost, or apparently lost, pass book, no assignee of the fund, with notice of the rule, has the right to rely upon it absolutely, and to say he purchased the debt and took the book assuming that no one but the holder of the book could obtain the deposit. See Ackenhausen v. Savings Bank, 110 Mich. 175 (33 L. R. A. 408); Mahon v. Savings Institution, 175 N. Y. 69. If he has not this right, he is relegated to the position of the assignee of a chose in action which the debtor pays, before notice of the assignment, to the creditor. At most, such a position is bettered, if at all, by the statute requirement, and, as I have already stated, good cause has been shown, and the facts amount to reasonable assurances within the meaning of the statute.