(113 A.)

(Supreme Court of Pennsylvania. April 25, cumstances are presented when it meets condi

3. Banks and banking 300-Accepting sav-person receiving the money answered all quesings bank book an assent to regulations printed therein.

When money is deposited in a savings bank and the bank fails to return it on proper notice, a prima facie case is made out against the bank in an action by a depositor to recover the amount deposited, and the burden then falls upon the bank to exculpate itself from liability, | SCHAFFER, JJ.

W. Logan MacCoy, of Philadelphia, for ap- | contract of deposit for the protection of the pellant. bank and the depositor, and are binding on John N. Landberg, of Philadelphia, for ap- both alike. Burrill v. Dollar Savings Bank, pellee.

92 Pa. 134, 37 Am. Rep. 669; 3 R. C. L. 707, § 339; 7 Corpus Juris, 869, § 918. It is not material whether the depositor is able to read the English language. His duty is to make himself familiar with the rules. The situation is not similar to the case of an de-agent imposing some condition on an illiterate foreigner. Here the savings bank is sought by the depositor for the care of his savings. He should read, or have read to him, everything that relates to the deposits. Burrill v. Dollar Savings Bank, supra. The rule printed in the depositor's book reads:

"If any person shall present a deposit book at the office of the society pretending to be the depositor named therein, and shall thereby obtain the amount deposited, or any part thereof, and the actual depositor shall not have given previous notice at the office of the loss or theft of the book, the society will not be responsible for the wrongful payment, nor be liable to make good the same; provided that it has been entered in the book when made;" and, where ordinary care has been exercised and the money of a depositor is paid to a person other than the deposeitor, because of the failure of bank would not be liable to the owner of the such depositor to comply with this rule, the deposit for the loss.

KEPHART, J. [1-4] A savings bank is an institution organized to promote prosperity of persons of small means and limited opportunities, wherein earnings may be gamed on aggregate small deposits, which, after ducting necessary expenses and a reserve for depositors' security, are divided among the depositors. There is no capital stock, nor are there stockholders in such institutions, and it is not a bank in the commercial sense of that word. It is not, however, for all purposes, a charitable society, and, under certain instances, has been held to be a business corporation. West's Appeal, 64 Pa. 186; Bank for Savings v. Collector, 70 U. S. (3 Wall.) 495, 18 L. Ed. 207. The relation between the institution and the depositor is, in some aspects, that of a trustee and cestui que trust (Barrett v. Bloomfield Savings Institution, 64 N. J. Eq. 425, 433, 54 Atl. 543; State v. People's National Bank, 75 N. H. 27, 29, 70 Atl. 542, 21 Ann. Cas. 1204); but it has been held the relation is the same as that of a depositor in a commercial bank, that of debtor and creditor (7 C. J. 863, § 906). As it affects the question before us, it is difficult to define; probably a little of both. A savings But the bank must not be negligent in paybank is not held to the same high degree of ing the money on deposit to another than the care as that required of a commercial bank true owner or authorized agent, even though respecting its depositors or creditors. Kelly the passbook is presented as authority for v. Buffalo Savings Bank, 180 N. Y. 171, 72 the payment and the true owner does not N. E. 995, 69 L. R. A. 317, 105 Am. St. Rep. give the notice required by the rule. The 720. A savings bank is liable to its deposi- bank is bound to exercise ordinary care to tors for want of ordinary care. It does not safeguard its depositors. Want of care may insure a fund on deposit, nor is its work arise from a number of circumstances, as, for purely gratuitous; and, while the depositors instance, where the bank required only the deare the only ones to derive a benefit, none be- posit book to be presented, without other reaing secured by the organizers or trustees, it sonable means of identification, or where has been deemed wise, as a matter of pub- knowledge was brought home to the bank's lic policy, to adopt the rule of ordinary care officers of doubtful circumstances, calculated with relation to funds on deposit. The bank to excite suspicion in an ordinarily careful is, of course, required to pay to the depositor person, as, for instance, dissimilarity in the or his attorney the amount credited in his de- handwriting, patent to a person filling the posit book, unless relieved through some ex-position and performing the duties required traordinary circumstances; and, inasmuch of bank officers. as the depositors of savings institutions are so numerous and cannot be personally known to the officers of the bank, and as possession of the bank book is, under the deposit contract, prima facie evidence of the right to draw on the fund it represents, it became necessary to adopt rules to guard against imposition, not only by the depositors themselves, but by others through the carelessness of depositors. Accordingly, the rule hereinafter mentioned, or a similar one, with a number of others, has been adopted for the protection of such banks. These rules are printed in the deposit or pass books, and, by accepting the book, the depositor assents to the regulations and they become a part of the

[5, 6] Under certain conditions there is a presumption the officers performed their duty.

But when money is deposited and the bank fails to return it, on proper notice, a prima facie case is made out against the bank; so, in the present instance, with the money deposited and the bank failing to return it, a prima facie case was made out. It also appears from plaintiff's statement the bank book was stolen, and the only notice given of the loss was after the money was paid by the bank.

The bank had to exculpate itself from liability, and relied on the rule above quoted; if it is to have any effect beyond the rule of law common as to all deposits, it must some

(113 A.)

where operate to the benefit of the bank. To ftablish negligence or want of care? Instead do so, that institution must present such cir- of holding the company to the rule of ordicumstances in relief as will enable the depos- nary care, the investigation was directed toitor to test its good faith, accuracy, and other ward care of a most exacting character, diligence in the care of the fund; here such the highest degree known to the law. When circumstances were presented when it met the passbook was presented and the receipt the conditions stipulated in the rule. Of taken, it was the duty of the bank officials to course, it is always essential to show it had compare it with the original identification not converted or used plaintiff's money, and card, and, by the use of due diligence, ascerit answered plaintiff under the rule by show-tain if they were written by the same person. ing that the holder (plaintiff's impersonator) The payment was induced by the possession presented the passbook, signed the necessary of the passbook, the comparison of the signareceipts, and the money was paid to him. tures, and, if necessary in any case, examiBut the bank is not yet relieved; it is open nation as to contents of the identificato an investigation of its own acts. Plain- tion card. But if want of care may be estabtiff could show such negligence or want of lished by showing that in the comparison of ordinary care as would make the depositary signatures, after a most searching examiliable. This was not done by the mere proof nation and investigation under a high-power of loss in the first instance. The depositor magnifying glass, certain dissimilarities aphas the burden of proving negligence on the pear which have a tendency to discover a part of the bank (Israel v. Bowery Savings forgery, then the careful scrutiny of signaBank, 9 Daly [N. Y.] 507), and here the bur- tures by the bank officer, acting in good faith, den of proof rested on plaintiff to prove the goes for naught; the bank becomes an inbank had not exercised the care necessary surer against loss in all cases, and care of under the circumstances. It was not incum- the highest degree is substituted for that orbent on the bank to establish its innocence dinary diligence. The question would then in this regard further than the rule required. | be: Is the signature genuine? This is The rule, to be effective, must not be weakened; the fact plaintiff did not know the book was stolen would be immaterial. Levy v. Franklin Savings Bank, 117 Mass. 448. He must know, and to do so he must keep his book in a safe place. If he is careless and leaves the book lie around, as here, it is done at his peril; he should remember it may be stolen, the money secured before he can give notice, and he be the loser.

In the present case we have an institution doing business as a savings bank, with upwards of 300,000 depositors, nearly one-third of whom are foreigners. Plaintiff became a depositor of that institution in 1917. On Saturday, the 15th day of November, 1919, he missed the book and on the following Monday notified the bank of its loss. He claimed the book had been stolen, and he had not received the money on it. The book had been presented to the bank in the meantime at the end of a day's business, on the day, or close to the time, the loss was discovered. It was duly stamped, the money paid, and a receipt was shown from the man who presented the book and got the money. This latter evidence was in writing, or the facts admitted. It further appeared the person receiving the money answered all questions pertaining to the original identification card taken two years be fore-a very significant fact, in view of defendant's assertion that plaintiff himself received the money. This evidence would relieve defendant from liability, and entitle it to binding direction, unless plaintiff proved it had not used due care in identifying the person presenting the book and receiving the money.

wrong; the inquiry should be: Did the signature on the receipt so closely resemble the one on the identification card that a person occupying the position of paying teller, or such other officer, would believe it to be genuine and pay on account of it? It may not be a genuine signature; defendant was not required to so establish it, to be relieved from liability. The only evidence tending to prove negligence was given by witness Senat, and he labored to show the receipt a forgery, after, as he says, making "a thorough analysis," using "a very powerful" magnifying apparatus. Our savings banks might well go out of business if paying tellers were required to subject writings to such examinations before money is paid. It is claimed the omission of a letter was a suspicious circumstance, enough to have put one on guard. In long names such as this, Andrzej Bulakowski, like mistakes by illiterate persons are not unusual; and plaintiff, in signing the affidavit to his statement of claim, if ever he would be supposed to try to get it right, omitted the letter "e" from his name. The general characteristics of the signature, to our unskilled eye, so much resemble those of the original that we would not hesitate to take it as such.

[8] There was not sufficient evidence adduced by plaintiff of want of ordinary care on part of the bank officials in paying the money. Even in the case of a commercial bank, if a similar question to that now presented arose, the evidence here adduced would not have been sufficient, in an instance where it could defend against a forgery, to call for its submission to the jury. Myers v. [7] Was plaintiff's evidence sufficient to es- | Bank, 193 Pa. 1, 44 Atl. 280, 74 Am. St. Rep.

672. The case just cited was a suit to recov-| er an amount paid upon forged signatures, where the checks had been returned to and destroyed by the forger, who was an employee of the depositor, charged with the duty of examining the returned checks, and the contention was that the bank was liable because it failed to exercise due care in scrutinizing the signatures before it paid the forged checks; though it would otherwise have been discharged because of the depositor's failure to notify it within a reasonable time after the bank book was balanced and the checks returned. We there said (193 Pa. 12, 44 Atl. 281, 74 Am. St. Rep 672):

before he received the sugar, he could recover from the seller for the difference between the weight on which the draft was computed and the actual weight of the sugar, though he received the correct number of bags.

2. Sales 430-Offer to return unaccepted by seller does not defeat buyer's right to recover damages for breach of warranty.

Where there was an express guaranty of quality of sugar, which entitled the buyer, under Sales Act May 19, 1915 (P. L. 563, § 69: Pa. St. 1920, § 19717), to accept the goods and maintain an action for the breach of warranty, such action by a telegram to the seller, sugthe buyer did not lose his right to maintain gesting a return of the goods, which was unac

attachment

3. Garnishment 193-Foreign
need not be dissolved as to difference be-
tween amount claimed and that held by gar-
nishee.

Where the garnishee has in his possession more money owing to defendant than is claimed by the plaintiff, the writ of foreign attachment need not be dissolved as to the excess over the plaintiff's claim, since the garnishee may voluntarily pay the surplus to defendant, or defendant can, under Act June 13, 1836 (P. L. 583, § 62; Pa. St. 1920, § 11025), enter appearance and dissolve the attachment by giving security.

"We find no evidence that required submis- cepted by the seller. sion of the case to the jury, * nor was there any evidence of negligence on the part of the bank that should have been submitted to the jury. The checks purporting to be signed by the plaintiff were destroyed, and of course they were not produced. There was not a particle of evidence that the signatures were not such complete fac similes of plaintiff's signature as to be impossible of detection, even by an expert. * On this point, negligence is not to be presumed, and hence the presumption must be in favor of the bank. In the absence of any evidence, from the signatures themselves or from witnesses, that there was any difference between them and plaintiff's signature, which could be detected by the eye, it must be assumed that the forgery was of such a character that the bank, acting with due care and caution, was deceived by it. In fact there was no evidence that the bank in honoring the checks acted negligently."

See, also, Bank v. Morgan, 117 U. S. 96, 107, 6 Sup. Ct. 657, 29 L. Ed. 811; United Security, etc., Co. v. Bank, 185 Pa. 586, 40 Atl. 97. We need not mention defendant's evidence on this line. The society was not required to produce it until plaintiff met the burden of proof, nor to answer the other wholly immaterial evidence. We have considered all of it, and the record amply sustains our conclusions. Plaintiff did not meet the burden of proof.

The judgment is reversed.

Appeal from Court of Common Pleas, Luzerne County; J. B. Woodward, Judge.

Action by the Diamond City Beef Packing & Provision Company against the MurdochJames Company, Incorporated, defendant, and the Second National Bank of WilkesBarre, garnishee. From an order quashing the writ of foreign attachment, the plaintiff appeals. Reversed, and record remitted with a procedendo.

Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, and SCHAFFER, JJ.

Charles M. Bowman, of Wilkes-Barre, for appellant.

B. R. Jones, of Wilkes-Barre, for appellee.

SIMPSON, J. Plaintiff appeals from an order of the court below quashing its writ of foreign attachment, because, as was alleged, the statement of claim, which was filed and accepted as an affidavit of cause of action, was indefinite, vague, and evasive. Other grounds were specified in the motion to quash, but they were cured by amendment, duly allowed, and appellee's counsel frankly admitted at bar that the allowance thereof

could not be reviewed on this appeal.

The facts set forth in the affidavit, which must be taken as true in considering the present question, are these: Defendant sent to plaintiff a circular, offering to sell Philip

(113 A.)

pine Raw Light Brown Sugar, "packed in sugar in the bags, at a stated price per 70 lb. wicker bags," alleging it was "unsur-pound; whereas before the sugar was delivpassed for manufacturing and general pur-ered it was compelled to pay for the excess poses," and that, though "a percentage of quantity also. On principle the view taken this sugar is slightly warehouse har-set, this below, if correct, would have defeated plainin no way detracts from the true quality, tiff's attachment, no matter how little sugar which is absolutely guaranteed"; the price there was in each bag. to be 13 cents a pound f. o. b. New York, of [2] Plaintiff, however, is also entitled to which 3 cents per pound was to be paid when maintain its action for the difference bethe order was given, and the balance on tween the amount paid and the actual marpresentation of sight draft attached to bill of ket value of the sugar received. There belading. Plaintiff ordered 100 bags on these ing an express guaranty, it was entitled, unterms, and forwarded the advance payment der section 69 of the Sales Act of May 19, as required. When the sugar reached its 1915 (P. L. 543, 563; Pa. St. 1920, § 19717), to destination, and was still in the possession of "accept or keep the goods and maintain an the carrier, plaintiff paid the sight draft, and action against the seller for damages for received the bill of lading; but, upon exam- breach of warranty." This it has done, and ination, the sugar was found to be 1,237 is now doing; for, though its original telepounds less in weight than the quantity for gram suggested a possibility of returning the which plaintiff had paid, and of an entirely sugar, defendant did not take up with this different quality from that which it was guar-proposition, and cannot now claim any right anteed to be, the contents of each bag being accruing because thereof. No more effica"in a solid lump like a stone," caused by itscious proof could be made of an intention to having been 'thoroughly saturated with salt keep the goods than the statement of claim water," making it "wet, or salvage, sugar," which seeks to recover only the difference in "the very poorest quality of sugar then upon price. the market," and of a "market value of only 6 cents a pound, of which the defendant well knew"; its purpose being to "defraud plaintiff herein until the sight draft had been paid and the bill of lading taken out." On learning of the breach of the warranty, plaintiff at once issued the foreign attachment in this case, and telegraphed to defendant for in-matter for the parties rather than the court. structions regarding the disposition of the If the garnishee has in its hands more monsugar. To this no reply was made; but the ey than is necessary to meet plaintiff's claim, garnishee ruled plaintiff to file an affidavit of it is not required to hold the entire amount, its cause of action, which was done in the but may voluntarily pay the surplus to deway stated, setting forth, inter alia, the fendant. If it is not willing to do this, deabove facts, and claiming for the overpay- fendant has the right to enter an appearance ment of $160.81 due to the deficiency in (which is the primary purpose of the attachweight, and also $2,453.92, being the differ-ment), and then, under section 62 of the act ence between the contract price paid and of June 13, 1836 (P. L. 568, 583; Pa. St. 1920, the market value of the sugar in the condition in which it in fact was. In this state of the record the rule to dissolve was taken and made absolute.

[1] Assuming the above averments to be true, plaintiff was entitled to recover at least the amount which it had overpaid, and for this reason alone the order appealed from would have to be reversed. On this point the theory of the court below was that, as plaintiff purchased and received a stated number of bags of sugar, it cannot complain. The fact stated is true; but it is averred plaintiff was only to pay for the quantity of

[3] It is suggested by appellee that, even if we reversed the court below on the points already considered, we should order the attachment "to be dissolved to the extent of $1,942.55," this being the difference between the amount paid on the draft and that claimed in the statement. This, however, is a

§ 11025), to dissolve the attachment by entering security in such a sum, or by making deposit in such an amount as the court below shall decide is sufficient to protect plaintiff in its claim, after which the suit will proceed in due course as in actions commenced by summons (Bergman v. Straus, 264 Pa. 439, 107 Atl. 810); or defendant may appear and defend, without dissolving the attachment, as provided by section 64 of the same act (section 11028).

The order of the court below, dissolving the foreign attachment, is reversed, and the record is remitted with a procedendo.