Wasilauskas v. Brookline Savings Bank, 259 Mass. 215

259 Mass. 215 | Mass. | 1927

Carroll, J.

On June 29, 1912, an account was opened with the defendant in the name of Tamozzis Wasilewskos. A card, referred to as a signature card, was made out for Tamozzis Wasilewskos, who signed the same with his mark. The defendant also issued a savings bank book in said name. The plaintiff was unknown to the defendant prior to June 29, 1912. At the top of the signature card signed by the plaintiff there were printed these words: “I hereby agree to the by-laws of the Brookline Savings Bank and any amendments or additions thereto hereafter made without further notice.” One of the defendant’s by-laws provided: “the bank shall not be held responsible for money paid out to any person unlawfully presenting a book.” This by-law was printed in the bank book. On August 25, 1921, the bank book was presented to the defendant by some one who answered the preliminary questions as to age, occupation, address and birthplace and gave a signature by a cross, and a check for $600 was delivered, payable to the order of Tamozzis Wasilewskos and drawn on The First National Bank of Boston. The check was cashed at this bank on August 26, 1921. The signature Tamaszin Wasilauskas was written on the back of the check. Before paying the check The First National Bank called the defendant on the telephone and asked about the identity of the payee, and in reply the answers given on the signature card were read. On August 27, the defendant was notified that some one other than the plaintiff had drawn the $600. It was agreed that the plaintiff did not know of the withdrawal of the money until he saw “an entry stamped in red which he had not seen before.” A verdict was directed for the plaintiff in the Superior Court and the case reported.

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. Levy v. Franklin Savings Bank, 117 Mass. 448. Goldrick v. Bristol County Savings Bank, 123 Mass. 320. Donlan v. Provident Institution for Savings, 127 Mass. 183. Kingsley v. Whitman Savings Bank, 182 Mass. 252, where the cases are reviewed. The by-law provided that the defendant shall not beheld responsible “for money paid out” to one unlawfully presenting the bank book.

The defendant paid the wrongdoer by check, and it is urged that this mode of payment is not in compliance with the by-law, that it was not a payment in money and therefore the defendant was not protected by the by-law. A mere receipt of a check, in the absence of evidence that it was accepted in payment, is not as matter of law a payment. Illustrated Card & Novelty Co. v. Dolan, 208 Mass. 53, 54. Bergman v. Granstein, 235 Mass. 378, 380. Feinberg v. Levine, 237 Mass. 185, 187. But presentment for payment of the check at the bank on which it is drawn and the receipt of the amount would be conclusive evidence of payment. Illustrated Card & Novelty Co. v. Dolan, supra. While a check as such is not cash, Keystone Grape Co. v. Hustis, 232 Mass. 162, 165, if a check is given in payment of a debt and the check has been accepted in payment and has been cashed, the payment is in cash, As was said in Breck v. Barney, 183 Mass. 133, at page 136, “What is in law a payment is a payment in cash.” Automatic Time Table Advertising Co. v. Automatic Time Table Co. 208 Mass. 252, 258. The check against the defendant’s account in The First National Bank having been paid by that bank, it was “money paid out” within the meaning of the by-law, and was a defence to the plaintiff’s action. Breck v. Barney, supra. Illustrated Card & Novelty Co. v. Dolan, supra. Automatic Time Table Advertising Co. v. Automatic Time Table Co., supra.

The plaintiff relies on Jordan Marsh Co. v. National Shawmut Bank, 201 Mass. 397, Grow v. Prudential Trust Co. 249 Mass. 325, and similar cases where the instrument was forged. These cases are not in conflict. In the case at bar the wrongdoer was the payee and intended by the maker of the check to be the payee although the defendant was mistaken as to his identity; and The First National Bank by cashing the check paid the one to whom the check was payable. Payment was made to the wrong person, that is, the payment was made to one who was not the owner of the book, but under the by-law the defendant was authorized to make the payment as it was made, as the plaintiff agreed in effect when the account was opened that payment could be made to the one presenting the book. The difference in the spelling of the name on the back of the check and the spelling on the face of the check is not material.

There was no evidence of negligence of the defendant.

It follows that judgment is to be entered for the defendant.

So ordered.