Gifford v. Rutland Sav. Bank
| Decision Date | 10 January 1891 |
| Citation | 21 A. 340,63 Vt. 108 |
| Parties | CHARLES L. GIFFORD v. RUTLAND SAVINGS BANK |
| Court | Vermont Supreme Court |
GENERAL TERM, OCTOBER, 1890
Judgment affirmed.
Joel C. Baker, for the plaintiff.
Munson J., did not sit, having been of counsel.
That the bank took plaintiff's deposits without requiring his assent to the by-laws by subscribing his name to the book kept for that purpose, as provided by the eleventh article, is not conclusive that he did not otherwise assent to them; for we do not regard that method of assent as intended to be the only method, but only one method.
The maxim that the express mention of one thing implies the exclusion of another is often excedingly helpful in the construction of contracts, but great caution is necessary in dealing with it, for, as said by Lord Campbell in Saunders v. Evans, 8 H. L. 729, it is not of universal application, but depends upon the intention of the parties as discoverable from the face of the instrument or the transaction. Broom's Leg. Max. 653. Williams, J. in Eastern Archipeligo Co. v. The Queen, 2 El. & Bl. 879, says it is by no means of universal nor conclusive application; and he gives instances of its non-applicability.
Now we discover nothing upon the face of this transaction that shows that it was the intention of these parties that plaintiff should be deemed to assent to the by-laws only by subscribing his name to said book; but quite the contrary appears. Both parties knew that plaintiff had not signed said book, but yet they continued to occupy to each other the relation that the deposits created, and presumably with the mutual intention that all the rights and incidents of that relation should attach to it, as it is not to be presumed that they or either of them expected or intended that the non-compliance with one by-law should nullify the whole, but rather that the matter should stand as though that by-law did not exist. Hence, by receiving and holding the deposit book as his voucher against the bank, with the by-laws printed in it, of which the case shows he had actual knowledge, and continuing his relation of depositor, he must be taken thereby to have assented to the by-laws, save the one that he knew was not complied with, and to have agreed to them as a part of the contract of deposit. And so it has been elsewhere held. Heath v Portsmouth Savings Bank, 46 N.H. 78; (88 Am. Dec. 194); per Ellsworth, J., in Eaves v. People's Savings Bank , 27 Conn. 229; (71 Am. Dec. 59); Goldrick v. Bristol County Savings Bank, 123 Mass. 320.
The by-law based upon the difficulty of identifying depositors doing business at the bank, which provides that the institution will not be responsible for loss sustained when a depositor has not given notice of his book's being lost or stolen, if it is paid in whole or in part on presentation, has often been held to be a reasonable and proper regulation for the protection of the bank. See the cases passim.
But this by-law does not relieve the bank from the exercise of reasonable care; and payment to the wrong person on presentation of the book, even before notice of its loss will not exonerate the bank, if the attendant circumstances were sufficient to excite the suspicion of a prudent...
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