Heath v. New Bedford Safe Deposit & Trust Co.

Bralet, J. The contention of the defendant that the money was received from Macomber, on the condition that he was to obtain the plaintiff’s signature on the card furnished him, and return it to the company, and because he failed to comply with this request the money was not accepted, and it was returned to him, becomes untenable. At the time the money was handed to the cashier of the defendant he was informed that the deposit was to be made for the benefit of the plaintiff, and he was requested to send a telegram to him that it had been made and placed to his credit. A telegram was sent accordingly informing the plaintiff that $190 had been placed to his credit by Macomber. The defendant was not obliged to-take the money or send the telegram, but if it chose to do both it must stand by the contract thereby made. Under the completed transaction the relation between the parties was that of banker and depositor, and the defendant became the debtor to the plaintiff for the amount of the general deposit placed to his credit. Its liability could be discharged only by payment of the debt. Ordinarily this could have been done in either of two ways: the plaintiff might have gone in person and demanded and received over the counter the money, or he could draw his check on the defendant for a part or the whole of the sum, and if the company paid to him, or to a person lawfully presenting a check signed by him, its indebtedness would be discharged. Carr v. National Security Bank, 107 Mass. 45. But while Macomber in making the deposit obeyed the instructions given him by the plaintiff, the fact that he was his agent for that purpose would not of itself be sufficient to clothe him with authority to draw it out. • The rule is clear that the acts of an agent not within the scope of his authority do not bind his principal. The defendant apparently became dissatisfied by reason of the delay in not receiving the card containing the signature of the plaintiff, as well as by the fact that the deposit was to be immer [484] diately withdrawn. But its dissatisfaction could not operate to-change the nature of the, contract, or discharge it from liability. When it paid over the money to Macomber it did so at its peril, and took the chance, that he was authorized to sign the check by which it was withdrawn in the name and behalf of the plaintiff. In justification of its action and under an allegation of payment in the answer, it now relies on a subsequent ratification by the plaintiff of this act of Macomber arising out of a settlement of the accounts between them, and in which the amount of the deposit was included and credited to the plaintiff. But it was a question of fact whether Rice, who purported to be an agent of the plaintiff for that purpose, was authorized by him to make such a settlement, and if so, whether it included the amount of the deposit. The case was submitted to the jury under instructions which fully stated the legal rights of the parties. By their. verdict they have found that the defendant has shown no sufficient legal reason to justify it in refusing to pay the demand of the plaintiff. Exceptions overruled.