Brown v. Merrimack River Sav. Bank

• Decision Date: 16 March 1894
• Citation: 67 N.H. 549,39 A. 336
• Parties: BROWN v. MERRIMACK RIVER SAV. BANK.
• Court: New Hampshire Supreme Court

39 A. 336

67 N.H. 549

BROWN

v. MERRIMACK RIVER SAV. BANK.

Supreme Court of New Hampshire. Hilisboro.

March 16, 1894.

Exceptions from Hillsboro county.

Assumpsit by Albert O. Brown, administrator of the estate of Sale Page, deceased, against the Merrimack River Savings Bank, for money deposited by plaintiff's intestate in the defendant bank, and dividends and interest. There was a verdict for plaintiff, and defendant excepts. Exceptions overruled.

There was evidence tending to show: That Sale Page deposited in the defendant bank, October 8, 1889, $200, and signed an agreement to be bound by the by-laws of the bank, and received a deposit book, in which the rules and by-laws of the bank were printed in conspicuous type, among which by-laws was the following: "Guard against Fraud in Withdrawing Deposits. As the officers of this institution may be unable to identify every depositor transacting business at the bank, the institution will not be responsible for loss sustained, when the depositor has not given notice of his book being lost or stolen, if such book be paid in whole or in part on presentation." That on the 11th day of December, 1890, he made' a further deposit of $100, which was entered in his book. That the officers of the bank had no personal acquaintance with him. That it was the custom of the bank to pay deposits to the person presenting the deposit book and signing the receipt book, unless something in the conduct or appearance of the person, or the circumstances attending the withdrawal, excited suspicion concerning his identity. That on the 11th day of November, 1891, some person presented the deposit book of Page to the bank, and requested payment. That there was nothing in the request, manner, or appearance of the person that excited the suspicion of the bank teller respecting his identity. That the money was paid to him in good faith by the teller, without making any inquiry concerning his identity; he believing the person to be Sale Page, the owner of the deposit. That the total number of depositors at that time was 6,400, not more than 5 per cent. of whom were personally known to the bank officers. That in the morning of the second day after the withdrawal, and immediately after Page discovered his loss, he went to the bank, and made inquiry if his deposit had been paid, and complained that his book had been stolen from his trunk, where he had kept it. That he kept his book and clothing locked in an ordinary trunk in his room, which was locked while he was absent from it. That the room was in a lodging house having 35 to 45 lodgers, and open at all hours of day and night. And that he was employed as a fireman, and worked nights.

(1) At the close of the evidence the defendants moved for a nonsuit, which was denied, and they excepted.

(2) A witness testified that one Merryfield was suspected of the theft, and was takeu to the police station, and questioned about it, but was not arrested, and that Page had stated that Merryfield had been in his room. The defendants offered to show that Merryfield kept a disreputable place near where Page roomed. The evidence was excluded, and the defendants excepted.

(3) Page lived about two months and a half after the alleged theft. He was a single man, and the evidence tended to show that he was industrious and economical in his habits. The amount paid by the defendants to the person who presented the book was $322.06. Page had deposits in three other savings banks. There was evidence tending to show that all the bank books were stolen at the time the one in question was stolen, and that the thief collected the amounts due upon two of them; also, that Page had no property except those deposits and his clothing. As bearing on the question whether Page himself, or some one with whom he was in collusion to defraud the defendants, received payment from them (which was one ground of defense), the plaintiff was allowed to introduce evidence, subject to the defendants' exception, tending to show that Page possessed only $15.10 in money, and some clothing, at the time of his decease, and also that he changed his room and boarding place soon after the alleged theft, for room and board at somewhat cheaper rates.

(4) The defendants requested the following instructions: "If the bank, having no notice of the loss of the book, acted in good...