The by-law of the bank, that "the institution will not be responsible for loss sustained when the depositor has not given notice of his book being lost or stolen, if such book be paid in whole or in part on presentation," was a material part of the contract of deposit entered into by the bank and Page when he made his first deposit and signed the agreement to be bound by the by-laws, which were printed in the deposit-book then given him, and governs the rights of the parties. Heath v. Portsmouth Savings Bank,46 N.H. 78; Wall v. Provident Inst. for Savings, 6 Allen 320. It, however, did not relieve the bank from the duty of acting in good faith and with reasonable care. Kimball v. Norton, 59 N.H. 1; Wall v. Emigrant Industrial Savings Bank, 64 Hun 249; Wegner v. Second Ward Savings Bank, 76 Wis. 242; Allen v. Williamsburgh Savings Bank, 69 N.Y. 314.
The motion for a nonsuit was properly denied, because there was some evidence tending to show negligence on the part of the defendants in not requiring the person who presented the book to identify himself, and in not comparing his signature with that of Page on the bank's books.
The question of contributory negligence is not involved. The plaintiff's loss of his bank-book, whether with or without negligence on his part, was not the legal cause of the injury complained of, but only the occasion of it, or merely an antecedent condition of it. The only question is, whether the defendants exercised ordinary care in paying this money in the way they did. *Page 552 If they did, they are without fault, and are not liable. If they did not, their negligence is, in law, the sole cause of the plaintiff's loss. Nashua Iron and Steel Co. v. Railroad, 62 N.H. 163. The question was rightfully submitted to the determination of the jury. Paine v. Railway, 58 N.H. 611, 163. The offer of the defendants to show that Merryfield, who was suspected of the theft of Page's book, kept a disreputable place near where Page roomed, was properly denied, as that evidence does not bear on the question at issue.
As bearing on the claim of the defence that Page himself, or some one with whom he was in collusion to defraud the defendants, drew the money from the bank, the plaintiff was properly allowed to show that Page, at the time of his death, about two months and a half after the money was drawn, possessed but a small amount of money, — the testimony having some tendency to negative this position of the defendants. In regard to the instructions requested by the defendants, the first was properly denied because it limited the duty of the bank to the exercise of ordinary care measured by the "facts and circumstances within their knowledge," instead of the facts and circumstances which by the use of due care they might have known, thus relieving them from the consequences of "culpable ignorance."
The second request was also properly denied, because it asked that the degree of care ordinarily exercised by the defendants in their business should be the standard which should determine the defendants' liability, instead of the degree of care which persons of average prudence exercise. The instructions given in regard to these matters were unobjectionable.
The third and fourth requests were properly refused, since the question of contributory negligence was not involved.
Exceptions overruled.
SMITH and CHASE, JJ., did not sit: the others concurred.