Fuge v. Quincy Co-Operative Bank

• Decision Date: 27 May 1938
• Citation: 300 Mass. 296,15 N.E.2d 199
• Parties: FUGE v. QUINCY CO-OPERATIVE BANK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

300 Mass. 296

15 N.E.2d 199

FUGE

v.QUINCY CO-OPERATIVE BANK.

Supreme Judicial Court of Massachusetts, Norfolk.

May 27, 1938.

Report from Superior Court, Norfolk County; Weed, Judge.

Action for the withdrawal value of forfeited bank shares by Herbert T. Fuge against the Quincy Co-operative Bank. Verdict for plaintiff in the amount of $960.35 and the case was reported by the trial judge.

Judgment on the verdict.

D. J. Tolman, of Quincy, for plaintiff.

G. W. Abele and S. T. Abele, both of Quincy, for defendant.

LUMMUS, Justice.

In 1919 the plaintiff bought from the defendant five of its shares, May Series No. 66 of 1919, at $200 a share, paying $40 a share down. The balance was to be paid in monthly instalments of $1 a share. He married in 1925. The book representing the shares was kept in a desk in his house, where his wife had access to it. She made some of the payments with his money. The last payment made by him personally was in 1927. He looked for the book in 1930, but could not find it. In September, 1930, about the time when his wife left him, he went to the defendant, and discovered what had happened. It was as follows.

In June, 1928, payments became six months in arrears, and the shares were forfeited under the statute in September, 1928. Thereupon the plaintiff became entitled to the withdrawal value of the sahres. G.L.(Ter.Ed.) c. 170, § 17. Thereafter the plaintiff's wife went to the defendant with a notice of forfeiture and the book, and asked for and received the withdrawal value, which was $702.10. She received that sum by the check of the defendant on the Quincy Trust Company, payable to the order of the plaintiff. She deposited the check without her husband's knowledge in a joint account in the Quincy Trust Company in the names of the plaintiff and his wife jointly, which they had opened in 1927. Evidently his name was forged in indorsing it for deposit. The wife withdrew all the funds in that joint account on December 11, 1928, without the knowledge of the plaintiff.

The jury returned a verdict for the plaintiff for $702.10 with interest. The report raises the question whether the evidence, already recited, warranted the verdict.

As the defendant concedes, it has the burden of proving payment to the plaintiff of what it owed him. The question is whether the facts stated show payment as matter of law. Permitting the wife to make monthly payments and to have the custody of the book for that purpose did not give her even apparent authority to ask for or receive payment of the withdrawal value. Heath v. New Bedford Safe Deposit & Trust Co., 184 Mass. 481, 69 N.E. 215;Barmby v. Merrimack Cooperative Bank, 285...