Farinha v. Comm'r of Banks
| Decision Date | 24 May 1939 |
| Citation | 303 Mass. 192,21 N.E.2d 239 |
| Parties | FARINHA v. COMMISSIONER OF BANKS et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Suit in equity by Anthony Farinha against the Commissioner of Banks and another to recover money claimed to have been deposited in a bank prior to defendant's taking possession of the bank. From a final decree dismissing his bill, plaintiff appeals.
Affirmed.Appeal from Supreme Judicial Court, Essex, County.
C. Evans, of Boston, for appellant.
L. M. Harlow, D. DeC. Donovan, and F. J. Muldoon, all of Boston, and J. B. Harrington, of Salem, for respondents.
This suit in equity was referred to a master by a single justice of this court. an interlocutory decree was entered confirming the report and a final decree was entered dismissing the bill of complaint. The case now comes before us on the plaintiff's appeal from the final decree.
The findings of the master are substantially as follows: The defendant Salem Trust Company, hereinafter called the bank, was taken possession of by the commissioner of banks, hereinafter referred to as the commissioner, on December 15, 1931. The plaintiff, of foreign birth, has been in this country since 1892. While able to sign his name he reads and speaks English with some difficulty. On June 15, 1931, he deposited $16,000, which he had withdrawn from savings banks, in the bank. In making this deposit he dealt with one Fischer, assistant secretary, treasurer, vice-president and a director of the bank, who was authorized to act in its behalf in the matter. The plaintiff at that time made it clear to Fischer that he would require payment of the sum deposited in the near future and that it should be available to him in cash, in bills of the denomination of $1,000. As a result he received from the bank a ‘time certificate of deposit’ reciting that the sum involved was payable to his order upon thirty days' notice. By error the certificate failed to state that interest was to be payable at the rate of four per cent per annum. Though the plaintiff ‘did not grasp every technical detail of * * * [this] transaction’ he understood in a general way what his rights were under the certificate. He knew that his deposit was not in the savings department of the bank, and was satisfied with the arrangement as completed.
On October 1, 1931, the plaintiff formally notified the bank of his intention to require payment of his deposit in thirty days. On October 30, 1931, he had a conference with Fischer and one Deery, the president of the bank, at which they made efforts to persuade him to leave his deposit in the bank, drawing upon it at need, or to accept the check of the bank in lieu of cash. These efforts failed, but they did persuade the plaintiff that $500 bills would be easier to negotiate than $1,000 bills. In consequence, he agreed to return to the bank on November 4, 1931, at which time, he was promised, his money would be paid to him. Upon his return to the bank on that day Fischer showed him a package of $500 bills and said, ‘I want to show you that we have your money here for you.’ In fact the package contained only $8,000, but the plaintiff believed that it contained the total amount of his deposit, and did not count the bills displayed. At the suggestion of Fischer he agreed to leave the money with the bank for a short time, upon the understanding that it was to be held for payment to him on demand. He stipulated that this must be the agreement else he would take the money away with him at once. He believed, and it was intended by Fischer that he should understand, that his previous arrangement with the bank was at an end, and that his deposit was thereafter to be payable to him on demand in $500 bills. Fischer thereupon returned the bills that had been exhibited to the plaintiff to the vaults of the bank for its general use. The plaintiff retained the certificate, which he then regarded only as a receipt for the money he originally deposited. When the plaintiff called again at the bank for his money, the commissioner was in possession.
Under the allegation of the plaintiff's bill as filed, his contention was that he had been fraudulently led to believe that his deposit of June 15, 1931, had been received in the savings department of the bank, and he sought to have the commissioner ordered to accept his proof of claim as a savings depositor. In its amended form the bill alleges that, at the time of the deposit Fischer knew that the bank was hopelessly insolvent, and the plaintiff seeks to be declared entitled to payment of the full amount of his deposit on that ground. See Steele v. Commissioner of Banks, 240 Mass. 394, 397, 134 N.E. 401, 20 A.L.R. 1203. There is no mention in the original or amended bill of the plaintiff's negotiations with the officers of the bank in October and November, 1931. The findings of the master do not support the allegations of the original bill, and are inconsistent with the allegations of the amended bill, since he found that the plaintiff understood at the time his deposit was made that it was not in the savings department of the bank; and that as late as November, 1931, the officers of the bank ‘entertained a genuine hope and expectation that in the last analysis they would be enabled through the happening of certain events to raise the respondent bank from the financial slough in which it was mired.’ It is not established by the findings of the master that the bank accepted the deposit knowing, through its officers, that it would not and could not pay the money when it should be demanded by the plaintiff. Steele v. Commissioner of Banks, 240 Mass. 394, 397, 134 N.E. 401, 20 A.L.R. 1203, and cases cited; Commissioner of Banks v. Pitocchelli, 276 Mass. 201, 205, 176 N.E. 774.
The evidence is not reported. The findings just referred to are not inconsistent with the subsidiary facts found by the master, and may have been...
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Tisei v. Building Inspector of Marlborough
...basis of the actions of any of them after that date would, therefore, be beyond the scope of the pleadings. Farinha v. Commissioner of Banks, 303 Mass. 192, 195, 21 N.E.2d 239 (1939). Shemeth v. Selectmen of Holden, supra, 317 Mass. at 280, 58 N.E.2d 6. However, there appears to be no issue......