[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 14
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 15 The only point upon which I have entertained any doubt in this case, is upon the question whether the teller was negligent in not observing the dissimilarity between the signature upon the receipt upon which the money was paid, and the signature of the plaintiff upon the book when the first deposit was made, should not have been submitted to the jury. Rule 9 provides, that the pass-book shall be the voucher of the depositor, "and the possession of the pass-book shall be sufficient authority to the bank to warrant any payment made in it." Rule 12. "All payments of one dollar, or over, must be made personally, *Page 17 or by order in writing, * * * and must be accompanied by the pass-book." Rule 17. "Although the bank will endeavor to prevent fraud upon its depositors, yet all payments to persons producing the pass-books issued by the bank shall be valid payments to discharge the bank." For the purposes of this case under the ruling of the court directing a verdict for the defendant, it must be assumed that the money was paid to a person other than the plaintiff, who had stolen the pass-book from the plaintiff. It appears that the bank was in the habit of requiring the signature of each depositor, upon a book which it kept, when the first deposit was made, and that the plaintiff had signed such book. The assistant teller, who paid the money, testified that the person who drew it signed a receipt, and that he compared the signature upon the receipt with the signature of the plaintiff upon the book, and was satisfied that the former was genuine. Evidence was given on the part of the plaintiff tending to prove that the signature to the receipt was unlike that of the plaintiff's on the book, that the latter was a better signature, and that some of the letters were unlike, and he requested to go to the jury upon the question whether the failure to discover the discrepancy was not negligence, which was refused. We have not been furnished with the grounds of the refusal. If it was upon the ground that the bank was absolutely discharged by a payment upon the production of the pass-book, irrespective of the exercise of ordinary care and diligence upon the part of the teller, in not discovering the dissimilarity in the signatures and instituting further inquiry, it would be error. It is necessary and proper that rules and regulations should be prescribed for the payment of money deposited in savings banks, and for the protection of the banks in making payments, and if such rules are within the restrictions of the act, and are reasonable, they should be upheld. They constitute, if properly communicated and assented to by the depositor, the contract between the parties. But these rules do not dispense with the exercise of ordinary care on the part of the officers of the bank. *Page 18 If, by a regulation designed to prevent fraud upon depositors, which by the rules the bank promised to "endeavor" to do, a fact or circumstance is brought to the knowledge of the officers, which is calculated to, and ought to excite the suspicion and inquiry of an ordinarily careful person, it is clearly the duty of the officers to institute such inquiry, and a failure to do so is negligence for which the bank would be liable, and such, I understand, is the doctrine of the cases cited by the defendant. The officers of these institutions are held to the exercise of reasonable care and diligence. (56 Me., 507; 27 Conn., 229;46 N.H., 78.) In this case if the two signatures were so dissimilar as when compared the discrepancy would be easily and readily discovered by a person competent for the position, then the failure to discover it would be evidence of negligence which should have been passed upon by the jury. It would not be evidence of negligence if the difference was not marked and apparent, or if it would require a critical examination to detect it, and especially if the discrepancy was one as to which competent persons might honestly differ in opinion.
The plaintiff is the appellant and must establish that an error was committed on the trial, and the difficulty is that it does not appear affirmatively that the difference in the signature was so manifest as to require the question to be submitted under the foregoing views. There was no direct evidence that it was of that character, and we cannot have, as the court below had, the benefit of a personal inspection. The difference in certain letters may not have been such as to indicate a different handwriting, and the same remark is applicable to evidence that one was better than the other. We have no means of determining but that the court decided that the dissimilarity was of such a character that negligence could not, within the views above expressed, be predicated upon a failure to discover it, and such a decision would not be erroneous in law. The tendency of the evidence is in that direction. We do not think the objections urged to the validity of the rules applicable to this case, can be sustained. *Page 19
The judgment must be affirmed.
All concur; except FOLGER and RAPALLO, JJ., dissenting.
Judgment affirmed.