Imágenes de páginas
PDF
EPUB

was made. It was not binding upon the bank if the book was afterwards written up. Now, however, the general rule seems to be that it is the amount actually deposited that the bank is liable for and the fact as to what the actual amount was may be proved by evidence other than the pass book and deposit slip, though these would be evidence of a high character. It is not even necessary that there should be a ticket made out or an entry in the pass book, if it can be proved that the deposit was actually made; but the bank should always require the deposit slip and make the entry. No by-law of the bank can bind a depositor to accept as correct the amount entered by the teller, or relieve the bank from liability for a deposit actually received by the bank without a deposit slip or entry in the pass book. The amount shown by a deposit slip and by an entry in the pass book would be presumed to be correct until shown to be incorrect, but evidence can be introduced to show that either the bank or the depositor has made an error. First Nat'l Bank v. Whitman, 94 U. S., 343; Schwartz v. Bank, 116 N. Y. S., 701.

38b. The pass book held by a depositor is evidence of his deposit, but it is not negotiable. The amount as shown by the pass book cannot be transferred to another by endorsement (the writing of depositor's name on) and delivery of the book merely.

And the assignment of a deposit slip does not in itself give the one to whom it is assigned the property in the deposit. Talcot v. First Nat'l Bank, 53 Kansas, 480.

38c. When a deposit is made by a depositor who has not his pass book, a duplicate deposit slip should be made out, marked “Duplicate," signed by the teller and delivered to the depositor as evidence of the deposit made. This slip is not negotiable. If the amount is raised the alteration constitutes a forgery.

38d. Balance and Return of Pass Book-Where a pass book has been balanced by the bank and returned, with paid checks, to the depositor, the rule as to how soon after the return the depositor must report any error or forgery to the bank is not settled, except that the error must be reported "within a reasonable time." In New York, where there has been a forgery the statute gives the depositor one year, after return of the paid check to him, within which to notify the bank; in South Dakota three months is the limit. What is a reasonable time within the balance as stated by the bank, upon the return of the pass book, must be objected to, will depend upon all the circumstances surrounding the return of the book and the discovery of the error. Ten days, a month, and under some circumstances even six months would not be unreasonable. The question is whether there has been diligent and careful verification made of the book and vouchers when returned. In New York and in Missouri it has been held that unless the bank has been damaged by the depositor's delay in discovering the error the depositor ought not to have to suffer the loss, even if the discovery is made a long time after, and it might seem to be justice that the depositor should not be punished for not discovering the error, so long as the bank has not lost by his delay. In the United States Courts, however, the rule is that the bank will be presumed to have been damaged by the depositor's delay. But the presumption can be proved to be wrong. Where a depositor is prompt in verifying the bank's statement of account it is generally possible to correct an error. On the other hand, if circumstances require a speedy verification, the depositor certainly ought to be held for any loss caused by his delay.

If A, being a depositor in bank, entrusts the matter of verifying the bank's statement as to his balance to his

clerk, X, and X, who has himself forged or raised checks of A's, fails to report the difference in the balance as stated by the bank and the true amount due, should the depositor be bound by the bank's statement of account? A might not look into the matter of his bank balance, or examine the paid checks, for years, and perhaps might learn by some other incident, that X at one time forged or raised checks. The general law of agency, that the knowledge of the agent is imputed to the principal would require a holding that X knowing of the forgery, A should be bound by X's knowledge. It could hardly be expected that X would report his own crime. In such cases in Pennsylvania, Massachusetts, Alabama and, it seems, in New York, the depositor will be bound unless the bank is notified of the forgery within a reasonable time. In Missouri and Maryland the rule is that the principal can recover from the bank, in such case, even a long time after the forgery, where the examination of the book upon its return by the bank was made by the one who committed the forgery. No reason appears why the principal should not stand the loss for such a wrongful act of his agent the same as he would for any other wrongful act of the agent performed in the scope of his authority, and the bank should not be called upon to stand a loss where not notified within a reasonable time. And doubtless the reasonable time allowed the depositor would be extended a little in view of the circumstances. In Illinois six months was held a reasonable time, and the principal was allowed to recover where his agent acquiesced in the bank's statement of account, which included payment of forged check, even though the book had been several times balanced. The Court said the account was stated for the depositor's protection, not for the bank's. A recent case is National Dredg

ing Co. v. President, etc., Farmers Bank, 69 Atlantic Reporter, 607. A Delaware case.

38e. Examination of Books of Bank-It has been held that the officers of the bank, having charge of the books, are considered the agents of both parties—the bank and the depositor-and that the depositor is entitled to examine and the bank bound to produce the books of the institution on all proper occasions. While there seem to be a proper occasion for a depositor to request an examination of his own account upon any controversy arising over his account with the bank, the courts would doubtless deny a depositor the right to examine into the books of the bank generally. While it would probably be just, both to the depositor and the holder of a check, for the bank to give the state of the depositor's account when a check for more than his balance is presented, and payment refused because there are not sufficient funds, it is doubtful whether a bank has the right to disclose to any third party the condition of a depositor's account, without making itself liable to the depositor, though in Kansas the court has held that the bank must give information as to the state of a depositor's account when testifying before the grand jury. In re Davis, 68 Kansas, 791. Of course, if a creditor of the depositor brings attachment proceedings, the bank must disclose the amount due the depositor. And if summoned as a witness, an officer of the bank would have to disclose the state of a depositor's account, if the fact were otherwise relevant to the issue. He could not refuse to disclose it on the ground that it was a confidential communication. See Sec. 109.

39. Who is Entitled to Deposit-When A deposits money in bank to his account the law will presume that it is A's money and the bank cannot deny his ownership and appropriate the money to the payment of the obliga

tion of some one else to it, or transfer it to another account because it claims the money belongs to somebody

As between the depositor and the bank the former is the true owner until the bank has legal authority to pay to someone else. If a third party claims the money, such claimant should use the proper legal method of enforcing his right, and after notice that the money is adversely claimed the bank should not use any wrongful method to prevent the rightful owner from recovering his money, but if the claimant does not use reasonable diligence in proving his right, the bank would be justified in paying the money upon the order of the depositor. Of course, if the bank has actual knowledge that the money belongs to someone else it will be liable to the true owner if it pays to the depositor. If X deposits money in bank and before X draws it out A notifies the bank that the money belongs to him (A) and offers to indemnify the bank if it loses anything by refusing to pay X, the bank will be liable to A if it pays to X and A establishes his right to the money. The true owner of a deposit is always entitled to it. Stair v. York Nat'l Bank, 55 Pa. St., 364.

39a. If A deposits money in bank under the name B, under an agreement with the bank that it will pay out the money on his checks signed "B," he can withdraw it on checks so signed. The bank will be discharged so long as it pays checks according to the contract and so long as it has no knowledge that the money belongs to some one else. Davis v. Lenawee Co. Sav. Bk., 53 Mich., at 166.

If A, without any agreement with the bank, deposits money in B's name, and it is for a legal purpose and for the benefit of B, even though B had no knowledge that the deposit was being made, B would have the right in most States to claim it, when he learned of it. If the

« AnteriorContinuar »