Powers v. Provident Institution for Sav.

• Decision Date: 15 April 1878
• Citation: 124 Mass. 377
• Parties: Cassius C. Powers, administrator, v. Provident Institution for Savings
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

124 Mass. 377

Cassius C. Powers, administrator, v. Provident Institution for Savings

Supreme Court of Massachusetts

April 15, 1878

Suffolk. Contract for money had and received, brought against a savings bank by the administrator of a depositor. After the former decision, reported 122 Mass. 443, the case was tried in the Superior Court, before Bacon, J., who allowed a bill of exceptions in substance as follows:

The plaintiff is the administrator with the will annexed of the estate of John Marley. On July 22, 1857, there was standing to the credit of Marley, on the books of the defendant, the sum of $ 1096.22, on two accounts. On that day he drew, in equal amounts from each account, the sum of $ 556.22, and afterwards, on the same day, opened three new accounts with the defendant in the name of "John Marley, Trust.," and deposited $ 200 each on two of the accounts, and $ 100 on the other.

In 1870, during the lifetime of Marley, the five books of deposit, received by Marley from the defendant, were lost or stolen from his possession, and the defendant has paid the plaintiff, as administrator, the amounts due on the two old books and on one of the new ones, on his filing a bond to indemnify the bank against the production of said books. Neither of the five books has ever been produced, and no demand has been made on either party to this suit on behalf of any person claiming to be cestui que trust of the new accounts remaining unpaid. The defendant was notified by Marley in 1870, after the loss of the books; that they had not been transferred, and that they were his property. The plaintiff tendered to the defendant a good and sufficient bond to indemnify it against any claim arising from the production of the missing books of the accounts still unpaid or from any claim of any cestui que trust; but the defendant declined to pay said plaintiff the amounts due on said books at the date of the writ, December 22, 1874.

Upon these facts, the defendant asked the judge to rule that on the evidence offered by the plaintiff a prima facie case of the existence of a trust was made out, and that the presumption was not rebutted by the further evidence offered by the plaintiff. But the judge declined so to rule, and left it to the jury to say whether the money deposited by Marley on said accounts, belonged to him absolutely at the time of deposit, or whether he held it subject to a trust; and, if they found the former, to return a verdict for the plaintiff.

The jury returned a verdict for the...