Madeiran Alliance Protective Ass'n v. Lowell Trust Co.

De Courcy, J. One John S. Pitta, treasurer of the plaintiff, on February 2, 1914, deposited money of the association with the defendant, stating that he desired to draw checks against the same. On the signature card he wrote the name of the plaintiff as “M. A. P. Association;” and the “duly authorized signatures, which you will recognize in the payment of funds or the transaction of other business on our account” was stated to be “John S. Pitta, Treas.” During the following eleven months many checks were drawn against this account. Eight of these were signed “M. A. P. Association, John S. Pitta, Treasurer;” and twenty-three others were drawn by said John S. Pitta, Treasurer. About January 3, 1915, one Leonard A. Correa Azevedo was elected treasurer of the plaintiff association, and informed the defendant that he desired to keep an account in the bank in the same way that it had been kept by his predecessor. A similar signature card was filled out and signed, Azevedo writing the name “Madeiran Alliance Protective Ass.,” and, as the duly authorized [91] signature in the payment of funds on the plaintiff’s account, "Leonard A. Correa Azevedo Treasurer.” On January 11,1915, a check was drawn against the account signed “Madeiran Alliance Protective Ass. By Leonard A. C. Azevedo,” and it was duly honored. On January 22, 1915, Azevedo went to the defendant’s place of business and informed the teller that he wished to draw out $600 of the money deposited by him, in order to place it in a savings bank, where it would draw interest. A counter check was handed to him, filled out for $600, and made payable to “cash.” It was signed "Leonard A. Correa Azevedo Thesoureiro M. Associosao,” which admittedly stands for Treasurer Madeiran Association. The money was paid to Azevedo, and charged against the account of the plaintiff. This action is brought to recover $600 “for money received by the defendant to the plaintiff’s use.” ■ Azevedo, who deposited and drew the plaintiff’s money, was • in fact the duly elected and acting treasurer of the association. When the account was opened the defendant was directed to recognize "Leonard A. Correa Azevedo, Treasurer” as the duly authorized signature, in the payment of funds on the plaintiff’s account. The plaintiff never notified the bank of any limitation, by by-law or otherwise, on the treasurer’s authority to draw the money which he deposited. On the contrary for about a year checks had been drawn upon the plaintiff’s account, by the former treasurer Pitta and by Azevedo; and all had been paid without any objection on the part of the association. The defendant was justified in assuming that the treasurer Azevedo was authorized to draw checks against the account of the plaintiff. Horgan v. Morgan, 233 Mass. 381, 385, and cases cited. It is urged that the counter check as drawn was not in form the check of the plaintiff. The signature thereon indicated that Azevedo was signing as treasurer and on behalf of the Madeiran Association. Under the negotiable instrument law, R. L. c. 73, § 37, it would not bind him personally if he was duly authorized to sign checks for the association, and intended to exercise the authority at this time. Jump v. Sparling, 218 Mass. 324. Carpenter v. Farnsworth, 106 Mass. 561. It is agreed that the defendant, “up to and including said January 22, 1915, had had no notice either written or oral from the plaintiff or any person acting for it, as to how its checks were to be signed, drawn or paid, other [92] than from the aforesaid John S. Pitta and Leonard A. Correa Azevedo.” The signature to the counter check complied with the instructions given by Azevedo on the “signature card” except that the word "Thesoureiro” was used instead of its equivalent in the English language. “Treasurer,” and the words “M. Associosao” were added. As already appears, no particular form of signature had been adopted; some checks being signed “M. A. P. Association, John S. Pitta, Treasurer,” others “John S. Pitta, Treasurer,” and one “Madeiran Alliance Protective Ass. by Leonard A. C. Azevedo.” There were no suspicious circumstances about the payment of the $600 check to put the defendant on inquiry. It was drawn by the treasurer, and the money was paid to him in person. His purpose, as stated was a reasonable one. Whether he actually carried out that purpose is not disclosed. In short, the plaintiff has failed to show, in the agreed statement of facts, that the defendant violated its duty as debtor to the plaintiff in paying the $600 on January 22,1915, to the treasurer of the association. This conclusion renders it unnecessary to consider St. 1912, c. 277, § 1, with reference to the plaintiff’s failure to notify the defendant within a year that the check was drawn without authority. In accordance with the report judgment is to be entered for the defendant. So ordered.