The opinion of the court was delivered by
ROWELL, J.That the bank took plaintiff’s deposits without requiring his assent to the by-laws by subscribing his name to the book kept for that purpose, as provided by the eleventh article, is not conclusive that he did not otherwise assent to them; for we do not regard that method of assent as intended to be the only method, but only one method.
The maxim that the express mention of one thing implies the exclusion of another is often excedingly helpful in the construction of contracts, but great caution is necessary in dealing with it, for, as said by Lord Campbell in Saunders v. Evans, 8 H. L. Cas. 729, it is not of universal application, but depends upon the intention of the parties as discoverable from the face of the instrument or the transaction. Broom’s Leg. Max. 653. Williams, J., in Eastern Archipeligo Co. v. The Queen, 2 El. & Bl. *113879, says it is by no means of universal nor conclusive applica" tion; and lie gives instances of its non-applicability.
Now we discover nothing upon the face of this transaction that shows that it was the intention of these parties that plaintiff should be deemed to assent to the by-laws only by subscribing his name to said book; but quite the contrary appears. Both parties knew that plaintiff had not signed said book, but yet they continued to occupy to each other the relation that the deposits created, and presumably with the mutual intention that all the rights and incidents of that relation should attach to it, as it is not to be presumed that they or either of them expected or intended that the non-compliance with one by-law should nullify the -whole, but rather that the matter should stand as though that by-law did not exist. Hence, by receiving and holding the deposit book as his voucher against the bank, with the by-laws printed in it, of which the case shows lie had actual knowledge, and continuing his relation- of depositor, he must be taken thereby to have assented to the by-laws,, save the one that he knew was not complied with, and to have agreed to them as a part of the contract of deposit. And so it has been elsewhere held. Heath v. Portsmouth Savings Bank, 46 N. H. 78 ; (88 Am. Dec. 194); per Ellsworth, J., in Eaves v. People's Savings Bank, 27 Conn. 229; (71 Am. Dec. 59); Goldrick v. Bristol County Savings Bank, 123 Mass. 320.
The by-law based upon the difficulty of identifying depositors doing business at the bank, which provides that the institution will not be responsible for loss sustained when a depositor has not given notice of his book’s being lost or stolen, if it is paid in whole or in part on presentation, has' often been held to be a reasonable and proper regulation for the protection of the bank. See the cases passim.
But this by-law does not relieve the bank from the exercise of reasonable care; and payment to the wrong person on presentation of the book, even before notice of its loss, will not ex*114onerate the bank, if the attendant circumstances were sufficient to excite the suspicion of a prudent .man and put him on inquiry. Sullivan v. Lewiston Institution of Savings, 56 Me. 507; (96 Am. Dec. 500;) Kimball v. Norton, 59 N. H. 1; (47 Am. Rep. 171;) Levy v. Franklin Savings Bank, 117 Mass. 448 ; Appleby v. Erie County Savings Bank, 62 N. Y. 12; Allen v. Williamsburgh Savings Bank, 69 N. Y. 314.
It is a rule of frequent application that one who has knowledge of facts sufficient to induce a prudent man to inquire in respect of other facts germane to the matter in hand, will be charged with knowledge of such, other and further facts as he might have learned by diligent inquiry in the right direction. But it is competent to rebut the presumption of such ascribed knowledge by showing the existence of other and attendant circumstances of a nature to allay his suspicion and to lead him to believe that inquiry was not necessary.
A majority of the court think that the circumstances of this case are not such as to charge the bank with knowledge of any facts not learned at the time the fnoney was paid.
The bank had not been notified of the loss of the book. The plaintiff had never been at the bank, and was not known to any of its officers. The thief was also unknown to them; but he came to the bank with the book. in his possession, and that possession was apparently lawful; on inquiry he answered truly that the money was sent by letter for deposit, a statement well calculated to ward off suspicion, for the manner of sending, from its nature, was a fact peculiarly within the knowledge of those having to do with and interested in the deposit, and one that others would not be likely to know about.
Nor was there anything suspicions in the way the thief made the “ L.” Perhaps the plaintiff himself would have done no better. It is not suspicious that a man writes a name awkwardly. Many men write their own names that way, not to say illegibly.
*115Nor was the bank bound to require the thief to identify himself as the depositor further than he did by producing the book. There being no suspicious circumstances, the very terms of the by-law relieved it of that duty; and to require it would be to nullify the by-law, which is a part of the contract, and provides for just such a case as this.
Judgment affirmed.
Munson, J., did not sit, having been of counsel.