Boguslawski v. Mitchell Street State Bank

Eschweiler, J. Plaintiff’s positive denial of receipt of the $300 on September 24th and the teller’s testimony to the contrary made an issue clearly within the province of the jury to determine, and their determination in that regard in plaintiff’s favor cannot be disturbed. The question is much closer whether the bank used due care in the payment- of the $300, especially in view of the apparent similarity in the signature upon which the bank paid the money with the concededly genuine signatures. It was evident, however, that the tellers did appreciate at the time that there was something questionable about the situation and for that reason did much more than is usual in such transactions. The jury being necessarily satisfied that the money was in fact not paid to the plaintiff, may have discounted the teller’s testimony to his conclusion that it was paid to the right man, and, so viewing it, they might consider that it was not due care on the teller’s part to be so certain. The teller’s cross-examination of the one presenting the book and the receipt was limited to questions relating to matters disclosed in the book itself, and nothing appears to have been asked concerning the mistaken spelling of the first name — the very fact that seems to have first excited suspicion or question. That the one who forged the signature, if such forging were done, was content to apply for [298] but $300 of an apparently available balance of $1,300, might tend to discredit plaintiff’s theory, but that is perhaps counterbalanced by the possibility that he who was attempting such a bold fraud let his cupidity be controlled by his caution. Whether in such class of. cases, there being no special rules binding the parties, the burden should be on the plaintiff to prove want of due care, or on defendant to prove the exercise of due care in making the payment, payment being generally an affirmative defense, is not here necessary to determine. It was held, on what seems a reasonable view, to be on the defendant in Noah v. Bowery Sav. Bank, 225 N. Y. 284, 289, 122 N. E. 235, and on the plaintiff in Bulakowski v. Philadelphia S. F. Soc. 270 Pa. St. 538, 113 Atl. 553. The question was not determined in the two cases involving such deposits of Wegner v. Second Ward Sav. Bank, 76 Wis. 242, 44 N. W. 1096, and Ninoff v. Hazel Green State Bank, 174 Wis. 560, 183 N. W. 673. By the Court. — Judgment affirmed.