It is insisted, in the first place, that the verdict of the jury to the effect that the deposit in question was made by the plaintiff is unsupported by the evidence. On this issue much proof was submitted, and a very strong case was made favorable to the defence. But the plaintiff testified distinctly and positively, and indeed circumstantially, as to the occurrence, and that he made the deposit himself, and with his own money. In this he was corroborated to some extent; although the supporting proof was not very convincing or decisive in' character ; at least this is so as it appears to us on a reading of the' printed case. We cannot say, however, that the verdict is absolutely against the evidence, for the jury had the right to believe the plaintiff’s positive statement, with the slight proof given in its corroboration against even the strong case made for the defence. It would doubtless have been improper to have taken the case from the jury as it stood at the close of the trial. So it would be now improper, on the appeal, to hold that the verdict is certainly and absolutely against the truth ; or that it is so manifestly against the weight of evidence as to demand that it should be set aside for that reason. As above suggested, the jury had a right to believe the plaintiff, and it does not lie with the court, on appeal, to hold that he did not state the truth, in the absence of positive proof of his untruthfulness. There are many cases holding to the rule that, although the court might be inclined to differ with the jury in their conclusion upon a question of fact, still if a case be made for their determination, so that they have the right to find one way or the other accordingly as they should believe or construe the evidence, their verdict must be respected. This case must be deemed to be with the plaintiff on this question of fact. Therefore the fact
It may be well here to see to what extent the questions involved in this case were determined by the decision in Coleman’s Case, which was an action against the defendant heroin, based on very much the same state of facts as are proved to have existed in this case. (53 N. Y., 390.) In that case the deposit was made under similar circumstances as in this ; and a certificate was given by the teller of the bank to the depositor, as is this case, signed by Yan Campen. It was laid down by the court in that case, that irrespective of the certificate the liability of the bank was clear ; that having received the plaintiff's money as a deposit, with no information to him that it ivas for Yan Campon personally, the bank became bound upon a simple contract to pay it upon demand; that, notwithstanding the giving of the certificate in the name of Yan Campen individually, and not as an officer of the bank, yet it was competent to show by parol proof that the bank, and not Yan Campen, was the depositary; and, further, that if the latter fact was found for the plaintiff on the proof, the plaintiff established his right of action. It was made also a question of fact in that case, as it was in this, whether the plaintiff believed and had a right to believe, under the circumstances attending the deposit, that he was dealing with the bank, and not with Yan Campen individually. In both cases the jury found for the plaintiff upon this question. It is here urged that the plaintiff should be concluded by his acceptance of Yan Campen's certificate, because, as is claimed, that was itself on its face notice to him that Yan Campen, and not the bank, was the depositary, and we are cited to a class of cases which hold that a party signing a paper will not be heard to deny knowledge of its contents in the absence of fraud or mistake. (Germania Ins. Co. v. R. R. Co., 72 N. Y., 91-93; Hill v. R. R. Co., 73 id., 351; Upton v. Tribilcock, 91 U. S. [1 Otto], 50.) This question was also in Coleman’s Case, and the point was ruled against the defendant, a distinction being noted between the cases cited and this in hand. It was there said, per ANdbews, J., after making the distinction alluded to : “If the plaintiff had examined the certificate he would have been apprised of the fact that it purported to be the
Tbe case was not given to tbe jury to find directly on this question of estoppel; but did not tbe facts found by tbe jury, with those not disputed, operate in law to estop the defendant from denying that the certificate delivered to the plaintiff by the bank
A few questions yet remaim to be considered. It is urged that the plaintiff was improperly allowed to testify that he supposed and believed the certificate to be that of the bank when he received it; and that if he had known it was the certificate of Yan Campen he would not have accepted it. This evidence was competent; as his belief in that regard was a fact on which the decision of the case was made to turn. It was a fact, not a matter of mere opinion. In this respect it was like a question of intent in the case of an attack upon an assignment for fraud, alleged to have been made with intent to hinder, delay and defraud creditors. The rule applicable to evidence of this character is laid down in Dillon v. Anderson (43 N. Y., 236), where it is said, per Folgek, J., “ that where the doing of the act is not disputed, but is affirmed, and whether the act shall be held valid or invalid hangs upon the intent with which it was done, which intent from its nature would be formed and held without avowal, there he upon whom the intent is charged may testify whether he secretly held such intent when he did the act.” The case steers clear of the decision in Cowdrey v. Coil (44 N. Y., 382), and in Nichols v. Ore Co. (56 id., 618); and falls within the rule laid down in Dillon v. Andrews (supra), and in Cortland County v. Herkimer County (44 N. Y., 22); also in Sweet v. Tuttle (14 id., 465). This evidence was properly admitted.
It is next urged that the evidence given by Mrs. Burt, to the effect, that she believed her certificate to have been that of the bank, was improperly admitted. It is difficult to see how this evidence could have operated to the injury of the defendant. It bore upon no issue in the case, was remote and wholly irrelevant and immaterial, so much so as to be manifestly innoxious.
Nor was it erroneous to permit Gilbert, a director of the bank, to state that he was awaro of the fact that Yan Campen’s certificates were issued for money deposited at the bank. This evidence was admissible to show that the bank officers, or that Gilbert as one of them, had knowledge of the course of business adopted by their employees in conducting the business over the counter of the bank.
Yarious exceptions were taken to the charge of the judge, and to his refusals to charge as requested. Five points relating to his refusal to charge are on this appeal urged upon our consideration. The first two, have reference to questions of the plaintiff’s ability to learn, and his diligence in learning, whether the deposit was with Yan Campen or with the bank, and the remaining three relate to the plaintiff’s negligence in omitting to present the certificate or in giving notice to the bank of his claim upon it. The case was well submitted to the jury, as we think, on these points. We discover no error in the manner in which the case was submitted to the jury, calling for a reversal of the judgment.
Judgment and order appealed from should be affirmed, with costs.
Judgment and order affirmed, with costs.