Hudson v. Roxbury Institution for Savings

Morton, J. The plaintiff brings this action as administrator de bonis non of the estate of James Crosby to recover of the defendant the balance due on a deposit made by Crosby with the defendant bank in 1861. The plaintiff’s intestate died in November, 1868, and the identity of the depositor with the plaintiff’s intestate was found by the court, and seems to be satisfactorily established by the testimony as reported. The defendant, indeed, substantially admits it. The defence is that certain requirements of the by-laws have not been complied with, — principally those relating to the production of the book as a condition of payment, and to the notice to be given of a withdrawal of principal or interest, and to a bond of indemnity. There are also exceptions to certain rulings asked and not given, and to certain rulings that were made. The court found that the book was destroyed by fire in 1867. The defendant contends that the evidence did not warrant the finding. There was evidence tending to show that there was a fire in 1867 in the house occupied by the plaintiff’s intestate, and that a good many of his papers were destroyed. The treasurer of the defendant bank testified that he had been connected with the institution for twenty-five years, and that no one had demanded payment of the account or had presented the book. There was also evidence that some time between April, 1863, and October, 1875, notice was given, though it did not appear by whom, that the book was lost. We cannot say upon this evidence that the most reasonable way of accounting for the non-production of the book was not that it was destroyed amongst other papers in the fire that occurred in the house occupied by the plaintiff’s intestate in 1867, or that a finding that it was so [528] destroyed was clearly erroneous. This finding disposes of the second, third, and fourth of the defendant’s requests. The book having been destroyed, the plaintiff was thereby excused from producing it; and those requests which were based upon the necessity of presenting the book in order to obtain payment were, therefore, rightly refused. Warhus v. Bowery Savings Bank, 21 N. Y. 543. The court also found that the bank through its treasurer had waived the right to any other or further notice of withdrawal than such as was given before the commencement of this action. This finding disposes of the sixth of the defendant’s requests. The court gave the first and fifth rulings asked for by the defendant. The remaining requests, except the last one, which was that on all the evidence the plaintiff could not recover, so far as they involve matters not already referred to, relate to the plaintiff’s right to recover without tendering a bond of indemnity, and without payment having been ordered by the investing committee, as they were authorized to do by Article 26 of the amended by-laws in case of satisfactory proof of the loss or destruction of a book. This by-law was adopted long after the plaintiff’s intestate had made the deposit in question, at which time he signed a deposit book assenting to the regulations and by-laws then in force and to “ those which may be hereafter made pursuant to the power granted in the third article.” The third article provided for further regulations or by-laws, or alterations of those already made, and that “ all such regulations, by-laws, and alterations shall be equally binding on all depositors as those by them subscribed, after the same shall have been duly made known.” There is nothing to show that Article 26 of the amended by-laws was ever made known to the plaintiff’s intestate or to any one having any authority to represent him or his estate, or that any steps were taken to make it known to him or them. Without undertaking to say what would constitute a making known to depositors of subsequent amendments or alterations within the meaning of Article 3, we think that neither the intestate nor any one representing him or his estate can be held bound by Article 26 of the amended by-laws under the circumstances disclosed in this case, and that so far as the defendant relies upon that by-law it must fail. See Kimins v. Boston Five Cents Savings Bank, 141 Mass. 33. [529] The question of identity having been settled in favor of the plaintiff, and the defendant substantially admitting the identity of the- depositor with the plaintiff’s intestate, and the court having found that the book had been destroyed, there would seem to be no good reason why, on general principles, the plaintiff should be required to furnish a bond of indemnity as a condition of payment by the defendant. What we have said disposes, we think, of the objections urged by the bank to the rulings of the presiding justice and to the refusals to rule as requested. Exceptions overruled.