259 Mass. 215 | Mass. | 1927
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.”
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.
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.