Byron v. First Nat. Bank of Roseburg

• Decision Date: 23 February 1915
• Citation: 75 Or. 296,146 P. 516
• Parties: BYRON v. FIRST NAT. BANK OF ROSEBURG.
• Court: Oregon Supreme Court

146 P. 516

75 Or. 296

BYRON v. FIRST NAT. BANK OF ROSEBURG.

Supreme Court of Oregon

February 23, 1915

Department 1.

Appeal from Circuit Court, Douglas County; T. J. Cleeton, Judge.

Action by Elizabeth Byron against the First National Bank of Roseburg, Oregon, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an action to recover certain sums of money which plaintiff claimed to have loaned to the defendant bank. The complaint alleges, in substance, that between about the 6th day of February, 1905, and about the 17th day of June, 1911, the said plaintiff was a customer and patron of the said defendant bank, and during said time deposited large sums of money with said bank, and from time to time checked out portions of the same; that during said time it was understood by and between the plaintiff and defendant that the defendant might use and borrow from the plaintiff of said moneys to her credit as a depositor in said bank such sums and at such times as might be desired by the said defendant, and to pay plaintiff interest thereon; that between said dates the said defendant borrowed from plaintiff from said amounts to the credit of the said plaintiff at various times and in various amounts, and at various times and in various amounts repaid a portion of the same by depositing moneys and credits to the credit of plaintiff in its said bank, and thereby repaid all of said sums so borrowed, excepting an aggregate amount of $3,254.25, which said balance of $3,254.25, together with $959.83 interest, is due and owing from defendant to plaintiff on account of said transactions. The answer alleged that at the dates set out in the complaint plaintiff was a customer and patron of the bank and from time to time deposited and checked out large sums of money from the same and made general denial of all the other allegations of the complaint; containing this further affirmative defense:

"For a further separate, and affirmative defense to plaintiff's cause of action, defendant alleges that on or about the 17th day of June, 1911, the defendant rendered and delivered to the plaintiff a true and correct statement of her account with the defendant, showing that all the moneys deposited with the defendant by the plaintiff had been withdrawn by her and her account had been balanced; that said account so rendered and stated to the plaintiff by the defendant was acquiesced in and approved by the plaintiff and the plaintiff never made any objection to the defendant to said account as so stated to the defendant."

The new matter in the answer having been put in issue by the reply, a trial was had, and a verdict for plaintiff was rendered by the jury for the sum of $3,254.25. From a judgment upon this verdict, defendant appeals.

O. P Coshow, of Roseburg, for appellant. Albert Abraham, of Roseburg, for respondent.

McBRIDE J. (after stating the facts as above).

The fact that plaintiff deposited $3,254.25 more in the defendant bank than she herself checked out is clear. The only question arising on this branch of the case is whether she authorized T. R. Sheridan individually to check out the money and lend or use it for himself, or whether she contracted to lend it to the bank. The evidence discloses the fact that Sheridan was president of the bank and active in its management; that when plaintiff transacted business with it she usually transacted it with Sheridan if he was present, but with the other employés in his absence. The plaintiff, a woman past 60 years of age, had by inheritance from her husband recently become the owner of a deposit made by him in the defendant bank, which amounted in all to about $3,000. Shortly after her husband's death, she went to the bank to make a further deposit, when she had a conversation with Sheridan, which it is claimed constitutes the contract sued upon. The whole conversation was as follows:

"Just when I was leaving there (referring to the bank) T. R. Sheridan said, 'Mrs. Byron, you have got too much money in the bank to be laying idle,' and I says: 'What will I do with it? If I loan

it, I will lose it.' And he says, 'I will keep it working and give you 7 per cent. and keep 1 per cent. for the bank.' Those are just the words that he said. * * * That was all that was said. That was all the bargain that was made. * * * I said, 'All right, for if I loan it I will lose it.' He was president of the bank and doing business for the bank, I suppose."

Later the following question was asked, and the answer was permitted over defendant's objection and exception:

"Q. Who was you dealing with, the bank or with him? A. The bank; he was president of the bank. * * * Mr. Sheridan was president of the bank, and when I wanted money I went to the bank and got it."

Putting aside for the present the question of the authority of the president to borrow money on behalf of the bank, we will determine whether this testimony was sufficient to justify the jury in finding that the contract was made on its behalf or whether it merely discloses a contract between plaintiff and Sheridan individually to act as a broker for plaintiff in lending her money to third persons. It may be conceded, and it is the law, that a national bank cannot act as a broker; so, if the contract is to be construed in that aspect, plaintiff's case must fail. It is either a loan to the bank or a private transaction with Sheridan. It is a rule of law that, where a contract is reasonably susceptible of several constructions, that must be taken which is most favorable to the promisee. Hoffman v. Ætna Ins. Co., 32 N.Y. 413, 88 Am. Dec. 337; Moore v. Ætna Ins. Co., 146 P. 151, decided by this court February 16, 1915. From the authorities cited in the foregoing cases, we also derive the rule that in such instances the court will consider the relations of the contracting parties with a view of determining how the promisee must reasonably have understood the contract. In this case we find, on the one hand, a woman evidently unaccustomed to business and evidently so distrustful of her own capacities as to be afraid to lend her money. She is in a bank, displaying no doubt the usual evidences of wealth and solidity calculated to...