Fiore v. Ladd

• Decision Date: 05 April 1892
• Parties: FIORE v. LADD et al.
• Court: Oregon Supreme Court

29 P. 435

22 Or. 202

FIORE v. LADD et al.

Supreme Court of Oregon

April 5, 1892

Appeal from circuit court, Multnomah county; E.D. SHATTUCK, Judge.

Action by Saverio Fiore against W.S. Ladd and William M. Ladd to recover on a certain certificate of deposit. From a judgment entered on a verdict for plaintiff, defendants appeal. Reversed.

Williams & Wood, for appellants.

U.S Grant Marquam, for respondent.

BEAN J.

This is an action to recover $800 on a certificate of deposit issued by defendants, as bankers, on the 13th day of April, 1891, in the name of Saverio Fiore, which defendants afterwards paid and canceled, as plaintiff claims, wrongfully. Judgment for plaintiff. Defendants appeal. The facts are these: On April 13, 1891, plaintiff, who is an Italian, and can neither read nor write and only speak the English language with difficulty, having on deposit with the Portland Savings Bank the sum of $800, was advised by a fellow-countryman, named Antone, to withdraw his money from this bank and deposit it with defendants. Acting upon this advice, the money was withdrawn from the Portland Savings Bank, and plaintiff, accompanied by Antone, went into the bank of defendants for the purpose of depositing the money, where it was placed on deposit. As to who had possession of and delivered the money to the teller of defendants, and what transpired at the time, there is a direct conflict in the testimony between the plaintiff and the teller, who are the only witnesses testifying on that subject. The plaintiff says that he took the money, which was tied up in a handkerchief from his pocket, and delivered it to the teller, saying he wanted to place it on deposit for three months; that the teller received the money from and delivered to him the certificate of deposit described in the complaint, and requested him to write his name in the signature book for identification, but he informed the teller he could not write, and offered to make his mark in the book. Antone, who was present, then spoke up, and said: "I will write his name," and the teller allowed him to write the name "Saverio Fiore" in the signature book. He did not know the use of the signature book, or that Antone wrote the name "Saverio Fiore" as and for his signature. Afterwards, Antone, through fraud, obtained the certificate forged his name thereon, presented and received payment thereof. The teller testifies that, on the day named, the man the plaintiff calls Antone and plaintiff, both of whom were entire strangers to him, came to the bank together. Antone had possession of and delivered to him the money, saying he wanted to deposit it for three months, and giving his name as Saverio Fiore, and wrote this name in the signature book, which is used as a means of identifying depositors. The certificate of deposit described in the complaint was thereupon issued and delivered to Antone, and the two men left the bank together. Two or three hours afterwards, Antone, with whom he had all the dealings, and whom he supposed owned the money, returned, saying he had found a place where he could invest the money to a better advantage, and requested payment of the certificate, which he presented, indorsed with the name as written in the signature book, and it was thereupon paid and canceled; that during all his transactions with Antone, concerning the deposit of the money and issuance and delivery of the certificate, plaintiff was standing close by, and did or said nothing to indicate that he had any interest or ownership in the money. At the time of the deposit of the money, and payment of the certificate, the teller supposed and believed that the money belonged to the person making the deposit, and that his name was Saverio Fiore, as he represented, and did not know otherwise until long after the certificate had been paid. It is also in evidence, and about which there is no dispute, that it is the general custom of banks in the city of Portland, where a person unknown to the bank brings money for deposit, gives a name as his own, and asks for a certificate of deposit, there being no suspicious circumstances, to issue to him such certificate in the name given, upon his signing the signature book, if he can write, without further inquiry, and to pay the money upon the return of the certificate indorsed with the name as written in the signature book. But where the depositor cannot write, it is the custom to ask certain questions, the answers to which are entered in the signature book as a means of identification.

The errors relied on here are in the giving and refusal of certain instructions by the trial court. The defendants requested the court to instruct the jury, among other things as follows: "(1) If the jury find from the evidence that the money was delivered to the receiving teller by a person other than the plaintiff, and that he deposited the same and signed the signature book, and thereafter returned the certificate of deposit properly indorsed, and received the money therefor, and the bank or the paying teller had no reason to believe that he was not the owner thereof, the plaintiff cannot recover. (2) If you find from the evidence that it is a general banking custom, or a custom among the banks of the city of Portland, where a person brings money to a bank and asks for a certificate of deposit, and signs the signature book with a name which is not his own, and which the bank has no reason to believe is not his genuine name, to cash such certificate upon return thereof, with the proper indorsement thereon, without further inquiry, and that such were the facts in this case, such action on the part of the bank does not constitute negligence on its part. (3) If you find from the evidence that the plaintiff came into the bank with a third person, in this case, and stood by while the third person deposited the money, signed the signature book, and received the certificate of deposit, without protest or objection on his part, and that the teller of said bank did not know or had no reason to believe that plaintiff was interested therein, and defendants thereafter repaid the amount of such certificate to such...