In 1890 an application was made by the plaintiff and Daniel HSemcken, infants, for leave to sell their real estate. Oil this application one Martin. R. Winch ell was appointed special guardian. Such proceedings were had on the application that the guardian was authorized to convey, in the name of the infants, the re.al estate-described in the petition and directed to deposit one-half of the net amount received by him, being $813.65, in the State Trust Company to the credit of the plaintiff. On November 15, 1890, Winchell deposited this sum with the defendant and received the following certificate :
“ This certifies that
“ The State Trust Company,
“ New York,.
has, this 15th day of November, 1890, received from Lulu E.. Semcken, an Infant, the sum of Eight hundred thirteen and, 65/100-Dollars of current funds, upon which the said Company will allow interest at the annual rate of 3 per cent, from this date, and on 5-days notice will repay the like amount in current funds, with the-interest to the- said Lulu E. Semcken or her assigns oh the return of this Certificate, which is assignable only on the books of the Company. ' The right is reserved by the Company, upon giving five days notice to. reduce the rate or discontinue the payment of interest on this Certificate or pay off the principal. • Such notice to be served personally or through the Post Office, directed to the address-named -on the books of this Company.
“WILLIS S. PAINE,
“ John Q. Adams,
President.
“ Secretary.”
At the time he wrote in the signature book “ Martin R. Winch ell,, special guardian of Lulu E. Semcken. Address 68 William street, New York.” On May 6, 1891, Winchell returned the certificate to-defendant, claiming .that it should have been made "out to- him as-special guardian. This claim the defendant assented to, accepted he surrender of the old certificate and issued a new one to Martin. *57R. Winchell, special guardian of Lulu E. Semcben.” Winchell drew out all the funds represented by this certificate and appropriated them to his own use. Up to this time the defendant had received no copy of the order of the court under which the money was directed to be deposited. Thereafter the plaintiff brought this suit against the defendant for the amount of the deposit.
The learned trial court based its decision in favor of the defendant upon the ground : “ The deposit and the delivery of the certificate of deposit formed .a contract under the terms of which the defendant agreed and was obliged to pay back the money to Winchell on demand. Its repayment was, therefore, pursuant to the terms of the deposit, and could have been enforced by action.’’ Xo witness testified as to the actual occurrence between the officers of the defendant' and Winchell at the time of the deposit. The only evidence on this subject is the certificate of deposit itself and the fact that Winchell wrote in the deposit book his name in the form already mentioned. Without considering any suggestion that the notice that Winchell was special guardian for an infant put the defendant on inquiry as to the extent of his powers, and treating the case the same as if an adult were interested, we think this finding of the court was without evidence to support it and erroneous! The certificate which represents the contract made between the ¡parties (at least in the absence of evidence of an oral agreement modifying it) shows a deposit to the credit of the plaintiff. The signature book is'kept merely for the convenience of the defendant. It was not put in evidence, and there is nothing to show that in it was contained any contract affecting that expressed in the certificate, or that it gave W inchell any authority to draw the money. An agent authorized to deposit in a bank has not implied authority to draw on the account. (Morse Banks & Banking, § 314; Honig v. Pacific Bank, 15 Pac. Rep. 58.)
Xor is the bank protected by the subsequent surrender by Winchell of the certificate first issued. Mere possession by Winchell of the certificate unindorsed, without other authority, was insufficient to justify payment to him. (Story Agency, § 98; Doubleday v. Kress, 50 N. Y. 410.) To this there is an exception, that where the same agent makes the loan or investment and retains the secu*58rity the debtor is justified in paying him on the production of the 'security. But this case does not fall within the last rule, for two reasons: First. “ .Because the presumption from the possession of the security is not of unlimited, authority, but only to receive payment according to its terms.” (Doubleday v. Kress, 60 Barb. 181; Story Agency, § 98, note 4.) Here the defendant did not pay the - certificate according to its terms, but transferred the deposit represented by it to the personal credit of Winched, for the words . “ special guardian,” etc., were merely descriptio persanes. Second. The defendant had notice that the owner of the certificate was an infant and could not,' of her own power, constitute an agent to collect its amount. Any authority to withdraw the deposit n¡lust have proceeded either from some appointment as guardian or some order of the court.. Had inquiry been made and Winchell required to produce the order of the court which constituted his authority, that order would have shown that he was directed to make the deposit to ' the credit of the plaintiff, and was not permitted to draw upon it without the special order of the court.
The judgment should be reversed and a new trial granted, .costs to abide the event. :
All concurred.
Judgment reversed and new trial granted, costs to abide the event.