Kimball v. Norton , 59 N.H. 1 ( 1879 )

There is no controversy between the defendants. It is to be inferred that the mother intended an absolute gift of the money deposited in the daughter's name; that there has been no attempt to revoke it; and that the daughter has accepted it. This is a gift. Blasdel v. Locke, 52 N.H. 238.

The stipulation that a deposit may be withdrawn by any one presenting the book, does not relieve the bank from the duty of acting in good faith and with reasonable care. As it does not mean that the bank may pay the money fraudulently to a person producing the book, but known not to be entitled to the money, so it does not mean that the bank is absolved from all obligation of caution. A depositor is a beneficiary of a fund held by the bank as trustee. The trustee is incorporated for the purpose of exercising care in the management and preservation of deposits. This object would not be accomplished by care in the investment of the fund, and recklessness in paying a deposit to a wrongful possessor of a book. Without a special contract of exemption, the trustee would be bound to use due care to prevent a loss of the fund by false pretences of ownership or authority, as well as to guard against burglary and larceny. If, by stipulations with depositors, an incorporated savings-bank can discharge itself from the legal responsibility of its public employment and the fiduciary duties it was created to perform, it is to be presumed that the stipulations made by this bank were not designed thus to defeat the intention with which the legislature passed the act of incorporation. The by-law and agreement are to be construed according to the authorized business and organic object of the institution. The terms of deposit cannot be understood to make the books payable to bearer like bank bills, without imputing to the trustee a deliberate and studied attempt to expose beneficiaries to a great and unnecessary peril of loss, and to deprive them of important security which the trustee was chartered to furnish.

Depositors who thoroughly understood the printed forms used by the bank were forcibly warned to keep their books in close and careful custody, on account of the danger of their being wrongfully presented by other persons for payment, and the bank's difficulty of identifying the depositors. In this case there was no difficulty of identification. The bank, knowing that the pledgeor was not the apparent owner of the books, did not require him to produce such evidence of his authority as ordinary fiduciary care demanded. The court found at the trial that the bank took the defendants; books in pledge, with knowledge that the apparent title was in the defendants and not in the pledgeor, without the owners' consent, without an assignment, order, or proof of delivery, and without sufficient evidence of the pledgeor's authority. This was a correct conclusion of fact, and the conclusion of law is that the pledge was inoperative. In Donlan v. P. Inst. for Savings, 127 Mass. 183, there was a fraudulent personation of the depositor, and the bank was not guilty of negligence.

Exception overruled.

FOSTER, J., did not sit: the others concurred.