The plaintiff was a depositor in the bank of defendant, and the controversy in this action grows out of the payment by defendant of a check for sixteen thousand seven hundred dollars, purporting to have been signed by plaintiff, and for which amount defendant claims that it is entitled to debit the account of plaintiff. The complaint alleges that this check was a forgery. This is denied in the answer, and as another and separate defense, it is averred, in substance, that the plaintiff is estopped to deny the genuineness of said check because of his negligence in not examining his balanced pass-book and returned checks, including the one in dispute, within a reasonable time, and giving notice that such check was forged, “ by reason of which laches defendant was prevented from tracing out the forger of said check or said signature, if it was a forgery, *22and proceeding against him, for a period of nearly five months, and until all trace of said forger was lost.” The defendant also avers that the account between itself and plaintiff had become a stated one.
The check was paid on May 29, 1878, and on September 4, 1878, the defendant returned to plaintiff his passbook, showing the statement of his account at that date, and that he was charged with the amount of this check, which was also returned to him as one of the vouchers. On December 11, 1878, another statement of plaintiff’s account was rendered by defendant, in which appeared the balance shown by the previous account. The evidence also tended to show that plaintiff did not at once examine the check in dispute when it was returned to him with his balanced pass-book on September 4, 1878, nor until some time in the month of December, 1878, and that he first intimated to defendant a doubt of its genuineness about December 28, 1878, but did not give notice that he actually claimed it to be a forgery until February 1, 1879.
The verdict of the jury in favor of plaintiff must be deemed, on this appeal, to have conclusively established the fact that the check "was a forgery, as there was evidence sufficient to establish such a finding, and it is not claimed that there was any error in the instructions of the court, so far as they relate to that particular point.
It is well settled that a bank, in receiving ordinary deposits, becomes the debtor of the depositor, and its implied contract with him is to discharge this indebtedness by honoring such checks as he may draw upon it, and it is not entitled to debit his account with any payments except such as are made by his order or direction. (Crawford v. West Side Bank, 100 N. Y. 50; Phoenix Bank v. Risley, 111 U. S. 125.) All unauthorized payments, such as upon forged checks, are therefore made at the peril of the bank, and it is not justified in charging them against the depositor’s account, unless some negligent act of his in some way contributed to induce such payment in the first instance, or unless by his subsequent *23conduct in relation to the matter he is upon equitable principles estopped to deny the correctness of such payments. This view of the law cannot be well questioned, and finds abundant support in the decisions of courts. (Shipman v. Bank of State of New York, 126 N. Y. 318; Hardy v. Chesapeake Bank, 51 Md. 562; 34 Am. Rep. 325; Weinstein v. Bank, 69 Tex. 38; Leather Manufacturers' Bank v. Morgan, 117 U. S. 96.)
It is not claimed in this case that plaintiff was guilty of any prior negligence which induced the defendant to pay the check in dispute, and we are therefore to consider only the one general question, whether, upon the evidence before it, the court committed any error to the prejudice of the defendant in giving or refusing instructions relating to the defense of estoppel, and this we proceed to do.
The plaintiff was in no manner responsible for the action of the defendant in paying the check. In making such payment it parted with its own money, and not that of plaintiff, and the loss consequent thereon was its own, and should not be transferred to the plaintiff, unless, from all the circumstances in the case, it appears reasonably probable that but for his alleged negligence the defendant could have protected itself. The defendant has not in fact discharged its indebtedness to plaintiff, and should not be permitted to debit him with any amount as an offset thereto, unless it appears that by reason of the negligent conduct of plaintiff, it has omitted to take proceedings which it otherwise would and could have taken to indemnify itself from loss. This seems to us clear upon the plainest principles of justice. The balancing of the pass-book in September, and charging the plaintiff therein with the amount of this check, and its return to him at the same time, constituted a statement of the account between himself and the defendant, and it thereupon became the duty of the plaintiff to examine the same within a reasonable time, and give to defendant, without unreasonable delay, notice of any objection which he had to it; and unless such objection was made *24within a reasonable time it became an account stated, and there was imposed upon the plaintiff the burden of showing that the check with which he was debited was a forgery; and in addition to this, if the circumstances attending the entire transaction were such as to make it reasonably probable that the bank had suffered prejudice by plaintiff's unreasonable acquiescence in the account as stated, he would not be permitted to open the account by proof of its incorrectness.
Upon the trial, the court instructed the jury, in substance, that if they found that the check in dispute was a forged one, they must find for the plaintiff, unless it was shown that plaintiff's failure to examine his checks deprived the defendant of an opportunity to save itself from loss on account of the money paid thereon; and they were further instructed, that if “the plaintiff was guilty of negligence in respect to his treatment of his checks, including the disputed check, after he recived them at the September balancing and the December balancing, or by reason of his making the discovery of the forgery, or of the facts which put him on inquiry respecting it, some months before he gave any notice to the bank of such discovery, whereby the bank was or may have been injured, they may find for the defendant." So far, this was a correct statement of the law, and, with other instructions given, conveyed to the jury with sufficient clearness the law as we have declared it. But the court also gave the following: “In considering the fact that Mr. Janin’s bank-book was balanced, and that the bank’s statement of the balance was apparently acquiesced in for a considerable length of time, I instruct you that the plaintiff was under no contract to the bank to examine with diligence his returned checks and bank-book. In contemplation of law, the book was balanced and the checks returned for the protection of the depositor, not for the protection of the bank; and when Mr. Janin failed to examine it, the only consequence was, that the burden of proof was shifted. Mr. Janin then became bound to show that the account was wrongly *25stated; This right he has preserved so long as the claim was not barred by the statute of limitations.” This instruction, although apparently supported by the authority of Weisser v. Denison, 10 N. Y. 68, 61 Am. Dec. 731, is not, in our opinion, entirely correct, and is in conflict with the other instructions referred to. When considered in connection with a portion of another instruction given, to the effect that it “was sufficient to give notice when the forgery was discovered,” this instruction clearly implied that plaintiff could not be charged with negligence in not examining his checks within a reasonable time, and that the jury were only to inquire whether he was guilty of unreasonable delay in giving notice after he made the examination and discovered the forgery. This is not the true rule; but the error found in this instruction will not, in view of the undisputed evidence, justify a reversal of the judgment. Conceding that the plaintiff was guilty of negligence in not earlier examining his checks, discovering the forgery, and giving notice thereof, there is nothing in the evidence from which it can be reasonably inferred that the defendant sustained any loss thereby, or that its position with reference to the check, because of not having earlier notice, was in any manner changed to its disadvantage, and the court would have been justified in so charging the jury. The check was paid on Mby 29, 1878, and it was not until September 4,1878, that it was returned to plaintiff. The check was payable to “ currency or bearer,” and when paid, the person who presented it was not identified or required to indorse it. This case was tried in 1885, and there is nothing in the evidence pointing to the fact that if notice had been given on the very day the check was returned, the defendant would have been in any better position to discover the forger, or the person who uttered it, or to avail itself of any of the coercive measures known to the law, by which to retrieve its loss, than it was at the time it received notice. If plaintiff was negligent, it was not shown that the defendant suffered any damage there*26by, for that reason such negligence cannot be allowed- as a defense to plaintiff’s right to recover in this action.
There may be some general language in the case of Leather Manufacturers’ Bank v. Morgan, 117 U. S. 115, which would seem to imply that it is not necessary that the evidence should tend to show that any pecuniary benefit would have accrued to the defendant if reasonable notice had been given it, but this general language is limited by the facts of that case, and the more specific rule, which the court announced, viz.: “Still further, if the depositor was guilty of negligence in not discovering and giving notice of the fraud of his clerk, then the bank was thereby prejudiced, because it was thereby prevented from taking steps, by the arrest of the criminal, or by an attachment of his property, or other form of proceeding, to compel restitution.”
In the case of Continental National Bank v. Bank of Commonwealth, 50 N. Y. 576, cited by appellant, it is said that the arrest and detention of a swindler are powerful means of coercing restoration of property, and that the loss of this means in relying upon the declaration of another would estop such person from denying the truth of the statement upon which reliance was made. But this language is to be considered in connection with the particular facts then before the court, and as pointed out in the subsequent case of White v. Continental National Bank, 64 N. Y. 322, 21 Am. Rep. 612. The declaration held to be an estoppel in that ease was the direct admission of the genuineness of the check afterwards claimed .to be forged, and that “ had the teller of the certifying bank disclaimed the forged certificate and pronounced it a forgery when presented, the holder of the check would have had ample time to arrest the swindler at the Bank of the State of New York, before he had received the money on the gold checks, and before he went to the subtreasury with his gold certificates.”
The distinction between such a case as that and one like this, in which there is nothing in the evidence to indicate that all trace of the forger was not lost before *27the check in controversy was returned to plaintiff months after its payment, is a marked one, and in White v. Continental National Bank, 64 N. Y. 322, 21 Am. Rep. 612, just cited, what we conceive to be the rule, applicable to the facts in this record, is thus stated: “In the case at bar, it is the merest conjecture, with scarcely a possibility to support it, that the defendant, or those from whom it received the bill, could, at any time after the transmission of the foreign bill of exchange to Baltimore, have taken any effectual measures either for arresting the swindler or reclaiming the bill bought and paid for upon the credit of the bill. Estoppels cannot be based upon mere conjectures, even if a proper foundation is laid for them in other respects.”
There is nothing in Casco Bank v. Keene, 53 Me. 103, in conflict with this. In that case, and upon its peculiar facts, it was held proper to instruct the jury, “ that if the plaintiffs, relying on the defendant’s admission, were induced to refrain from obtaining security from Judson by his arrest or by an attachment of his property, and they thereby sustained an injury, then the defendant would be estopped from denying his signature.” But of course to justify such an instruction, there must be some evidence tending to show the facts upon which it is predicated.
In this case the burden of proof to show that it sustained damage or injury by the negligence of plaintiff was upon the defendant, and this it was required to show by evidence having some reasonable tendency to establish such fact. In order to justify the submission of any question of fact to a jury, the proof must be sufficient to raise more than a mere conjecture or surmise that the fact is as alleged. It must be such that a rational, well-constructed mind can reasonably draw from it the conclusion that the fact exists, and when the evidence is not sufficient to justify such an inference, the court may properly refuse to submit the question to the jury; and in our opinion, the evidence in this case was not such as would have warranted the jury in find*28ing as a fact that the delay of plaintiff in giving it notice that the check in question was a forgery lost to it any rights or remedies which otherwise it might have resorted to in order to save itself from the loss incurred by its own mistake or negligence in the first instance, and which it now asks the plaintiff to bear, and therefore the error we have pointed out in the instruction of the court was without prejudice to the defendant.
Judgment and order affirmed.
Sharpstein, J., Garoutte, J., Beatty, C. J., and McFarland, J., concurred.
Mr. Justice Harrison, being disqualified, did not participate in the foregoing opinion.