Tribulas v. Continental Equitable Title & Trust Co.

Opinion by Mr. Justice Linn, This suit in assumpsit was brought April 16, 1936, against Continental Equitable Title & Trust Co., which, at the time of the transactions to be considered, had been engaged in commercial banking. It had received savings funds as well as general commercial accounts. The plaintiff sued for $11,533.73 with interest from June 24,1931, averring that in prior years she had made deposits aggregating the sum of $12,000 and had received from the bank only $466.27. The 5th paragraph of the statement of claim is: “Plaintiff avers that all moneys [except $466.27] paid out of the said savings account and charged against the savings account of Martha Tribuías were improperly paid out, improperly charged against the savings account of said Martha Tribuías and that the money so withdrawn was not paid to Martha Tribuías or to anyone authorized to act for her or in her behalf.” In the affidavit of defense it was averred that plaintiff withdrew, on dates and in amounts specified, $11,966.27; that she knew her account had been closed; defendant denied that the orders or checks alleged to have been executed by the plaintiff were “improper, unauthorized and forgeries” as alleged by her. The affidavit also set forth that the amounts charged against the account had been properly paid and “that after the plaintiff withdrew the balance in her account *285 on June 24th, 1931, she made no demand upon défeñdant for the payment of any sum or sums prior to the institution of this suit upon the 16th day of April, 1936. Defendant avers that at all times prior to June 24th, 1931, the plaintiff knew the withdrawals made in said account and on June 24th, 1931, accepted the sum of $466.27 as payment in full of the balance in said account.” There was a verdict for the plaintiff for the full amount with interest. Defendant then made three motions, 1, asking leave to amend its affidavit of defense by setting up the statute of limitations; 2, a motion for a new trial, and, 3, a motion for judgment n. o. v. The learned court below granted the last motion and said that “in view of this ruling it is unnecessary to consider the motions for new trial and for leave to file an amended affidavit of defense.” These motions were accordingly overruled, pro forma, we assume. Plaintiff’s husband, Baltram Tribuías, was engaged in the real estate business, owned a hotel in Atlantic City, and had an active account with the defendant bank, at times with a credit of as much as $30,000. There was evidence to indicate that plaintiff was also interested in his real estate business. She ran a hotel in Atlantic City for three summers; her husband testified that he was also interested in that business with her. On September 3, 1918, he accompanied her to the defendant bank where she opened an account, called in the evidence a savings fund account. She could neither read nor write English. 1 The signature card has stamped on it the word “Special” which, the evidence shows, was the way in which savings fund accounts were distinguished by the bank from general accounts. The face of the signature card is as follows: *286 AUTHORIZED SIGNATURES OF 9/3 19 18 SPECIAL 4894 her (SIGN HERE) Martha X Tribuías mark Baltram Tribuías Witness CONTINENTAL-EQUITABLE TITLE AND TRUST COMPANY Tribuías Martha On the reverse side of the card appears the following in ink: Age 32 yrs Born Russania State Russia Mother living father dead 4 sisters in America 1 brother in Russia ADDRESS Children 2 girls 1 boy (1 adopted) BUSINESS INTRODUCED BY Baltram Tribuías Beside the word “ADDRESS” were written with ink the words “3500 Wharton St.” afterward changed in pencil to another address. *287 A passbook was given to her at the head of which was the following: CONTINENTAL-EQUITABLE TITLE & TRUST CO. DR. In account with Martha Tribuías CR. Ten Days Notice Required. On the inside cover of the front of the book were printed instructions, none of which has any immediate relation to the questions involved, probably because the same form of passbook was used for savings accounts as was used for commercial accounts, apparently the only difference being that the words “Special” and “Ten Days Notice Required” were stamped on them. When the account was opened, the Act of June 12, 1907, P. L. 525, 7 PS section 324, was in force, providing in section 1 that such bank “shall furnish each depositor or investor with a receipt in full, by pass-book or otherwise, for all moneys received, whether as deposits, dues, or on account of installments for any trust or investment whatever, which, until refunded, shall constitute a liability upon the part of the corporation, and shall be kept in proper form on books prepared for the purpose.” The pass book was put in evidence by the plaintiff and shows that it was balanced for the first time on February 15, 1922; on that date the bank had charged itself with the amounts deposited as they were entered at the time of deposit, together with five items of interest payable to the depositor, making a total of $19,-203.67. The bank claimed credit on the other side of the account for depositor’s withdrawals by checks in the sum of $17,698.64, leaving the bank indebted in the sum of $1,505.03, which was carried forward as a new balance. The book was balanced again May 28, 1923, when the plaintiff’s balance was $637.22, credit having been taken for a withdrawal by her of $1,000; it was balanced a third time, January 7,1924, when plaintiff’s balance was *288 $146.50, credit having been taken for the withdrawal of $500 by her check dated June 27,1923. Thereafter credits appear by a deposit of $1,220 on February 21, 1926, and by entries of interest for each year until August 25, 1930. Then the balance carried forward in plaintiff’s favor as of December 30, 1930, was $452.68. The only withdrawal during that period was the sum of $1,000, May 17, 1927. This withdrawal will be referred to later as the Fitzpatrick check. On June 24, 1931, the account was closed by the plaintiff’s receipt of $466.27, which, we assume, is the balance of $452.68 appearing on December 30, 1930, with interest to the date of closing the account. There was evidence that savings accounts received higher rate of interest than checking accounts. A witness for defendant testified that “withdrawal had to be made at the office. We had our own special checks that were only good within the office. They were a yellow check marked ‘Special’ on the end. By the Court: Q. What do you mean that withdrawals must be made in the office? A. I mean that we would not permit negotiable checks to be issued against savings accounts. Q. You mean you could not put a check in through another bank? A. That is right. Q. How about the passbook? A. The passbook had to be there with the withdrawal. By Mr. Ewing: Q. I imagine sometimes the bank waived the ten days’ notice for convenience sake if it was necessary? A. Sometimes, if it was necessary and if the depositor was well-known and had a good account. Q. What significance do the notations have on the last page of this book? (Indicating exhibit ‘PI.’) A. Those were notices of withdrawals. Q. Were notices of withdrawals given to cover withdrawals in this account? A. That is true. Q. And they were noted in the back of the book? A. That is right.” 2 *289 The contract between the bank and the plaintiff cannot be found from the passbook and the signature card alone, because, as has been seen, part of it is in parol, so that if any term of the contract depending upon oral evidence became important it would be necessary to have the jury pass on the oral evidence. The defendant of course concedes that by accepting the deposit it became plaintiff’s debtor; it is also agreed that plaintiff had the right to withdraw the deposit or any part of it after ten days’ notice; as it was a “Special” account, she would be required to use a check marked “Special.” We come then to the accounts as they appear in the documentary evidence. The account, balanced February 15, 1922, showed that, against interest allowed and deposits to her credit amounting to $19,203.67, the bank had charged withdrawals of $17,698.64, leaving a balance of $1,505.03 carried over as the debt remaining due to her. Now, it is not without interest to note that out of the total of $17,698.64 withdrawals charged against her, she makes no question of $8,698.64; that total is charged as having been paid to her in 1919 and in 1920; she concedes having received that. Her contention is that the remaining $9,000 then charged against her was paid without her authority and is part of the sum in suit. That $9,000 was represented by two checks on the form specified for such accounts, one in the sum of $5,000 dated June 2,1921, drawn to the order of her husband and indorsed by him, and the other, in the sum of $4,000, dated February 14, 1922, to her own order with her name written on the back of it alongside her mark and followed by the signature of Baltram Tribuías as witness. On cross-examination she was shown the $5,000 check and said: “That is Mr. Tribuías’ signature”; but she said, “I never put that cross.mark. He never told me nothing about that money, that he is going to take it, he gypped me, you know.” Her testimony with regard to the other three “Special” checks *290 referred to above as charged against her account, was substantially to the same effect. It has been held in this state that after a passbook has been settled with entries of deposits and credits and delivered to the depositor, he is bound personally or by authorized agent, with due diligence, to examine the account and without unreasonable delay to advise the bank of any error in it. If he fails to do that, the balance passbook becomes an account stated. An account stated is subject to impeachment if challenged seasonably; a depositor may wait too long. In Greenhalgh Co. v. F. Nat. Bank, 226 Pa. 184, 188, 75 A. 260, we said: “A balance struck in a pass book is in effect an account stated between a bank and its depositor, which it is true may be impeached for fraud or error, but unless so impeached the bank is estopped from denying its liability as shown by the account so stated by it. This doctrine is of universal application. Whether a bank is or is not estopped from denying its liability for a balance stated by reason of fraud or error depends upon the facts, which are for the jury. In such a case the burden is on the bank attempting to evade responsibility, because the presumption is that the balance stated by its own officers is correct and truly represents the account between the parties.” In United Security, etc., Co. v. Bank, 185 Pa. 586, 601, 40 A. 97, it was said: “A bank book settled, balance struck and checks returned to the depositor, will of course become an account stated if not promptly examined and errors of amount pointed out for correction, but the depositor is under no obligation to follow up and ascertain the genuineness of the indorsements that carry the title after the check has left his hands: Leather Manufacturer’s Bank v. Morgan, 117 U. S. 96; Welsh v. German Am. Bank, 73 N. Y. 424.” See also, Thompson v. Republic Trust Co., 84 Pa. Superior Ct. 183, 189; Myers v. Bank, 193 Pa. 1, 12, 44 A. 280; McNeely v. Bank, 221 Pa. 588, 70 A. 891; F. & M. Bank v. Bank, 165 Pa. 500, 504, 30 A. 1008; Iron City Bank v. Bank, 159 Pa. 46, 28 A. 195; Marks v. *291 Anchor Savings Bank, 252 Pa. 304, 307 et seq., 97 A. 399; Sergeant’s Exrs. v. Ewing, 30 Pa. 75, 83. When this suit was begun, the first account stated had gone unchallenged for more than 14 years, the second for almost 13 years and the third for more than 12 years. We need not, for the purposes of this case, speculate on what would be a reasonable time for the challenge of such accounts stated; as the period of limitations fixed by statute is only six years, the jury should have been instructed that on the admitted facts plaintiff by her silence during the periods specified had estopped herself from recovering for any items charged to her account prior to the last balancing of the book January, 1924: see Morgan v. Lehigh Valley Coal Co., 215 Pa. 443, 447, 64 A. 633. In Penn Bank’s Estate, Walters’s Appeal, 152 Pa. 65, 25 A. 310, the court said: “The bank stated his account and delivered it to him. For more than six years he has acquiesced in its correctness. His right of action, assuming that he had one in May, 1884, is now lost by the lapse of time, and the auditor and the court below were right in denying his right to participate in the fund.” This conclusion is not affected by plaintiff’s inability to read or write; she had ample opportunity to obtain advice of the effect of the balancing of her passbook from time to time. Compare Greenfield’s Estate, 14 Pa. 489, 496; Bulakowski v. Phila. Sav. Fund Soc., 270 Pa. 538, 113 A. 553. Nor is it material that, according to her testimony, during part of the time between 1924 and 1931, her husband had the book; he denied that he had it. The book was hers, given to her in compliance with a statute requiring it; if she was deprived of it by her husband or in any other circumstances, she should have advised the bank. The fact is not disputed that she had the book when the balances were struck; she had it February 21, 1926, 3 when she *292 made the deposit of $1,220. She produced it in 1931 when she withdrew the last balance and closed the account. If no transactions subsequent to the third balancing of the book were involved, we should be able to end this litigation now by affirming the judgment on the ground of plaintiff’s estoppel. But there remains for consideration the check of May 17, 1927, for $1,000 referred to above as the Fitzpatrick check. This withdrawal appeared charged against her account as of May 17, 1927, when the account was closed in June, 1931. She testified that she did not receive the money and that she did not make her mark to the check. It is an order prepared on one of defendant’s “Special” forms to “transfer to Baltram Tribuías $1,000.” It bears the name of Martha Tribuías and a mark; alongside the mark is written “Witness J. Fitzpatrick, Assistant Treasurer” in his writing. On the back of it appears “Credit account of Baltram Tribuías,” together with the name Martha Tribuías with her mark also witnessed by the assistant treasurer. Mr. Fitzpatrick died before the trial, so that the parties do not have his testimony describing the transaction. Baltram Tribuías testified on behalf of the defendant. He was shown the check and testified that there was “No signature on this check of mine.” We understand him to mean that though his name appears on the check twice, he did not write either. “Q. Was that $1,000 transferred to your account? A. I cannot remember. Maybe yes. Maybe she came in herself, because she used to work with ine. She made deposits and made deposit cards maybe, but not my signature on this one, and I cannot tell. Q. You know nothing about it, you can give us no information as to the occasion? You don’t even know whether you were present at the bank when there was a transfer of $1,000 from her account to your account? A. I cannot remember that long. Maybe I was. I just got to look at my check. The same day a check was deposited she put on my book. I could *293 prove it, but never was such times until 1933. She used to work with me together. Q. The trouble between you and your wife existed for a considerable length of time prior to 1931, didn’t it? A. Until 1933 we started— 1932 she started to look for trouble all the time. Q. Just answer the question. In 1933 the divorce was started— is that correct? A. She left.” Plaintiff testified that when she drew the balance of $466.27, on June 24, 1931, and surrendered the passbook, her husband was not present. She states that when she was told by the bank that her balance was $466.27 she protested; “I was crying and fighting and everything, and he told me to get out, that is all.” This check for $466.27 is in evidence and shows that her mark was witnessed by Baltram Tribuías her husband; this appears both on the front of the check and on the back where her name also appears with a mark. He testified that he was present with her in the bank when she received the money and that he witnessed her mark. In appellant’s brief it is stated that “The Plaintiff herself made all of the deposits in her account. In addition the evidence shows that plaintiff was frequently a visitor in the bank on behalf of her husband who was also a depositor. The evidence on behalf of Defendant was that plaintiff was well known to the employees of the bank.” Notwithstanding that the bank has been out of business for some years and that it may be difficult to find the persons who were employed by it at the time, and that Mr. Fitzpatrick’s death deprived the parties of his evidence, the positive testimony 4 of the plaintiff, as it *294 now appears in the record, that she did not receive the $1,000 represented by the Fitzpatrick check makes an issue of payment as to that item to be determined by the jury. The burden of showing due care is on the defendant: Bu lakowski v. Phila. Sav. Fund Soc., 270 Pa. 538, 113 A. 553. We must therefore reverse the judgment. We also think that leave to amend the affidavit of defense in accord with defendant’s motion should be granted. Judgment reversed and a new trial awarded. Footnotes [1] She testified: “Q. Did you sign your name? A. I put a cross mark. You see, my signature is not very good, like Chinese writing, he told me to put the cross mark and I put the cross mark.” [2] There is evidence to show that in two instances notice was waived by the bank. [3] This date is conclusively settled by the hank’s ledger card; we think counsel for appellant was mistaken at the argument in asking us to correct the year, as he had printed it, from 1926 to 1921. [4] “Q. I show you a check dated May 17, 1927, to the order of Baltram Trihulas, for $1,000, and ask you if you made your mark on that check? A. No, sir, I never make it. I never saw those checks. Q. Now, Mrs. Tribuías, you will notice that check is not witnessed by your husband. A. I don’t know who it is, the witness, I know it is not me. I never saw those checks. I saw the last one—Q. Just a minute—this check is witnessed by a man named *294 Fitzpatrick, who was Assistant Treasurer of the bank ? A. I don’t know. I don’t know that Patrick. Q. Didn’t you make your mark at tbe bank in the presence of Mr. Fitzpatrick? A. No, sir, I can swear to God. He may bring the woman with him, somebody else. I never saw the check.”