McCormick v. Rapid City Natl. Bk.

• Decision Date: 18 March 1941
• Docket Number: 8348
• Citation: 297 N.W. 39,67 S.D. 586
• Parties: J.E. McCORMICK, Appellant, v. THE RAPID CITY NATIONAL BANK, a Corporation, Respondent.
• Court: South Dakota Supreme Court

67 SD 586, 297 NW 39 (1941)

J.E. McCORMICK,

Appellant,

v. THE RAPID CITY NATIONAL BANK,

a Corporation,

Respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Pennington County, SD

Hon. A.R. Denu, Judge

#8348—Reversed.

Atwater & Helm, of Sturgis, SD

Attorneys for Appellant.

H.F. Fellows, Rapid City, SD

Attorney for Respondent.

Opinion Filed Mar 18, 1941

(See 67 SD 444, 293 NW 819)

PER CURIAM.

In this action a depositor prays judgment against his bank for an amount equal to the aggregate of a series of forged checks charged to his deposit account. Reference must be had to our original opinion, 67 SD 444, 293 NW 819, for a full understanding of the issues.

Rehearing was granted because through inadvertence we failed to consider the issues in the light of a contract signed by the depositor at the time of opening his deposit account. Among other things, that contract provided: “In the mailing or personal delivery of statements with cancelled vouchers, this Bank will not be liable for any amount paid on any forged or altered check issued in customer’s name and charged by it to his account, ... nor for any difference of account unless notice thereof shall be given by the customer in writing to said Bank within fifteen days after the date of mailing or personal delivery to customer of such statement of account with cancelled vouchers.”

The Bank urges this contract as a complete defense as against all of the claims of the depositor except the amount of two checks cashed during June, 1938, they being the two vouchers delivered to the depositor on the day the forgeries were discovered. That more than fifteen days had elapsed since the mailing of all other vouchers to the depositor is the only inference which this record will support.

Predicated upon Los Angeles Investment Company v. Home Savings Bank of Los Angeles, 180 Cal. 601, 182 P. 293, 5 ALR 1193, and Wussow v. Badger State Bank of Milwaukee, 204 Wis. 467, 475, 234 NW 720, 236 NW 687, the depositor contends that the Bank may not rely upon the provisions of this contract, because it failed to cause the record to affirmatively show that it had directed the depositor’s attention to the provision. This contention must be ruled against the depositor. In the foregoing decisions the courts were not dealing with contracts signed by a depositor. The contract at bar was signed by the depositor, and no attempt has been made to avoid that contract for fraud or upon other equitable...