A depositor in a bank, who sends his pass book to be written up
and receives it back with entries of credits and debits and his
paid checks as vouchers for the latter, is bound personally or by
an authorized agent, and with due diligence, to examine the pass
book and vouchers, and to report to the bank without unreasonable
delay any errors which may be discovered in them, and if he fails
to do so, and if the bank is thereby misled to its prejudice,
Page 117 U. S. 97
he cannot afterwards dispute the correctness of the balance
shown by the pass book.
If a depositor in a bank delegates to a clerk the examination of
his written up pass book and paid checks returned therewith as
vouchers, without proper supervision of the clerk's conduct in the
examination, he does not so discharge his duty to the bank as to
protect himself from loss if it turns out that without his
knowledge, the clerk committed forgery in raising the amounts of
some of those checks, and thereby misled the bank to its prejudice,
in spite of due care on the part of its officers.
In this case, it was held that the question whether the
depositor exercised in regard to such examination the degree of
care required of him in the circumstances disclosed by the
evidence, including the relations of the parties, and the
established usages of business, and the question whether the
endorsement of a particular check was, under the evidence, an
endorsement in blank or one for deposit to the credit of the
depositor, were for the jury to determine under proper instructions
as to the law.
This was an action commenced by defendants in error, as
plaintiffs below, against the bank, to recover an alleged balance
of account. The facts are thus stated by the court.
The defendants in error, subjects of the Queen of Great Britain
and partners under the name of Ashburner & Co., brought this
action to recover a balance alleged to be due on a deposit account
opened at the Leather Manufacturers' National Bank of New York City
in the name of "Wm. B. Cooper, Junior, agent for Ashburner &
Co." The main dispute is as to the right of the depositor to
question the account rendered by the bank so far as it charges him
with certain checks which he signed, but which, before payment,
were materially altered by his clerk without his knowledge or
assent. The claim of the plaintiffs is that after deducting all
payments to them, or for their use, there was due to them, April 8,
1851, the sum of $9,996.35, for which they ask judgment. They also
ask judgment, upon a second cause of action, for the sum of
$280.97, the amount of a check which, it is contended, was endorsed
specifically for deposit to the credit of their agent, and was not
placed to his credit. The bank denies its liability upon either
cause of action, except for the sum of $141.91, which, it contends,
is the entire balance due to the plaintiffs on March 22, 1851.
Page 117 U. S. 98
Numerous requests for instructions in behalf of the bank were
denied, and, under the order of the court, the jury returned a
verdict, upon which judgment was entered in favor of the plaintiffs
for the sum of $10,741.09. To this action of the court exception
was duly taken, and the bank brings the case here for review. The
record contains a large amount of testimony, the details of which
cannot well be embodied in this opinion, but the more important
facts and circumstances which the evidence tended to establish, and
upon which the decision of the case must turn, are those which will
be now stated.
1. One Berlin entered the service of Cooper on the first day of
January, 1878, when about seventeen years of age. He and his family
were well known to his employer. From that date until March, 1881,
as confidential clerk, he had the entire management of Cooper's
office, kept his books, and had full charge of the account which
Cooper, as agent of Ashburner & Co., kept with the defendant.
With the knowledge and under the direction of Cooper, he filled up
all checks drawn upon that account, entering on the stub of the
check book the date and amount of each check, the name of the
payee, and the purpose for which it was drawn. He states in his
deposition that he was well known to the teller of the defendant
bank and as the representative of Mr. Cooper.
2. Pursuant to Cooper's instructions or in the regular course of
business, he filled up certain checks between September 11, 1880,
and February 13, 1881, which, being signed by his employer and
delivered to him, were altered by him before they were taken from
the office. The alterations were by erasure and by rewriting the
body of the checks, and were made, he states, "with great care, and
could not be detected without very careful scrutiny or a very close
examination." The teller of the bank testifies that the checks when
presented by Berlin were always carefully examined by him as to
signature, amount, date, and endorsement, and that there was
nothing about them to excite suspicion, or to suggest alteration or
erasure. Upon the checks so altered, Berlin received from the bank
the "full raised amount," out of which he paid to Cooper
Page 117 U. S. 99
or to his use the several amounts for which they were originally
drawn, and appropriated the balance to the discharge of gambling
debts which he had contracted. The entries in the check book were
made by Berlin, and were correct, but he "forced the footings of
the stubs" by making false additions equal to the increase of the
altered checks.
3. The numbers and dates of the altered checks, and the nature
of the several alterations, are as follows:
image:a
4. Cooper's pass book was written up at the bank October 7,
1880, November 19, 1880, and January 18, 1881, and a balance
struck, showing to his credit on those dates, respectively,
$10,821.64, $4,568.68, and $5,566.61. Upon each occasion, the book
was returned with all checks that had been paid subsequent to the
previous balancing, including the altered checks. Across the face
of the pass book, on the first balancing, was
Page 117 U. S. 100
written "62 vouchers returned," on the second, "79 vouchers
returned," and on the last. "66 vouchers returned." Each time the
pass book was returned with the vouchers, Berlin destroyed such of
the checks in the lot as he had altered. He remembers to have shown
the rest of the vouchers to Cooper on the balancing of October 7,
1880, but does not remember of pursuing that course on the other
occasions.
5. Berlin states that Cooper "was in the habit of examining his
checkbook from time to time." It is clear that the latter knew of
these balancings, for he testifies that his account with the
bank
"was balanced from time to time, which was done by the bank
writing up the pass book, and returning the checks that had been
paid by it; that when the pass book was so returned, it went to the
clerk Berlin, who then balanced the check book, that being one of
the duties imposed upon him; that the witness took no part in such
balancings, but Berlin generally showed him the vouchers that were
returned, because he used to like to look at them, but he never
gave Berlin any particular instructions so to do; that he was in
the habit of looking over his checkbook, and kept track of the
balance, which, during the months of August, September, November,
and December, 1880, and January, 1881, he understood to be about
$10,000, and that when he asked Berlin as to the balance, his
answer agreed with about what he supposed was in the bank.' He also
knew the object of such balancings; for he testifies 'that he had
been a dealer with the defendant bank for upwards of eighteen
years, and that he knew that it was its custom, as well as the
custom of all banks, to balance at intervals the pass books of its
depositors, and to return the same when balanced, accompanied by
the checks drawn by the depositor and charged to the account, as
the vouchers of the bank for such payments."
6. Cooper states that the forgeries were discovered by him
"about the first or second day of March, 1881." Berlin having
stayed away from the office for a day, he compared his pass book
with the stubs of the check book, and ascertained that a certain
number of checks appearing on the stubs were not charged against
him in his pass book, and did not appear
Page 117 U. S. 101
to have been returned by the bank, while others, which appeared
on the pass book to have been charged against and returned to him,
did not appear, by the stub of the check book, to have ever been
drawn. He
"thereupon sent his pass book to the bank to be balanced, and it
was balanced on March 2, 1881, and among the vouchers then returned
were the aforesaid checks 8,518 and 8,550, which had been altered
from their original amounts."
This, he states, was the first knowledge he had of the
forgeries. After receiving the last balancing, he
"then notified the bank that his clerk had absconded, and that
alterations had taken place, and requested them not to pay any more
of his checks the bodies of which were filled up in the handwriting
of his clerk Berlin."
Whether this notification was given as soon as he saw those two
checks or on the same day or after the expiration of several days
the record does not show.
7. Cooper admits that if on any of the several balancings he had
made such examination of his check book and pass book as was done
on March 1, 1881, he would have "easily discovered" that his
account had been charged with altered checks, and that for the
previous five or ten years, he knew of various means adopted by
bankers and merchants to prevent the raising or alteration of
checks, but he had not employed or used any of them. Upon one
occasion, the date not given, he discovered, by adding up the
"footings of the check book," an error, and spoke to Berlin about
it. The latter having replied that it was very seldom he was caught
in a mistake, Cooper believed him and looked no further into the
matter.
Cooper did not surrender the altered checks, except 8,518 and
8,550, because they had been destroyed by his clerk. The teller
states that the latter one came through the clearing house, while
the former was not, when paid, in the condition in which it
appeared to be alteration, he said, was now apparent.
It was upon this state of case substantially that the circuit
court instructed the jury to find for the plaintiffs upon both
causes of action.
Page 117 U. S. 102
Judgment was entered accordingly, and the bank sued out this
writ of error to review it.
Page 117 U. S. 105
MR. JUSTICE HARLAN delivered the opinion of the Court. After
stating the facts as above reported, he continued:
Page 117 U. S. 106
The court below, as shown by its opinion, proceeded upon the
ground that Cooper was under no duty whatever to the bank to
examine his pass book and the vouchers returned with it in order to
ascertain whether his account was correctly kept. For this reason,
it is contended the bank, even if without fault itself, has no
legal cause of complaint, although it may have been misled to its
prejudice by the failure of the depositor to give timely notice of
the fact -- which by ordinary diligence he might have discovered on
the occasion of the several balancings of the account -- that the
checks in question had been fraudulently altered. This view of his
obligations does not seem to the Court to be consistent with the
relations of the parties or with principles of justice.
While it is true that the relation of a bank and its depositor
is one simply of debtor and creditor,
Phoenix Bank v.
Risley, 111 U. S. 125,
111 U. S. 127,
and that the depositor is not chargeable with any payments except
such as are made in conformity with his orders, it is within common
knowledge that the object of a pass book is to inform the depositor
from time to time of the condition of his account as it appears
upon the books of the bank. It not only enables him to discover
errors to his prejudice, but supplies evidence in his favor in the
event of litigation or dispute with the bank. In this way, it
operates to protect him against the carelessness or fraud of the
bank. The sending of his pass book to be written up and returned
with the vouchers is therefore, in effect, a demand to know what
the bank claims to be the state of his account, and the return of
the book with the vouchers is the answer to that demand, and in
effect imports a request by the bank that the depositor will in
proper time examine the account so rendered and either sanction or
repudiate it. In
Devaynes v. Noble, 1 Meriv. 531, 535, it
appeared that the course of dealing between banker and customer in
London was the subject of inquiry in the High Court of Chancery as
early as 1815. The report of the master stated, among other things,
that for the purpose of having the pass book
"made up by the bankers from their own books of account, the
customer returns it to them from time to time as he thinks fit,
and, the proper entries being made by them up to
Page 117 U. S. 107
the day on which it is left for that purpose, they deliver it
again to the customer, who thereupon examines it, and if there
appears any error or omission, brings or sends it back to be
rectified, or if not, his silence is regarded as an admission that
the entries are correct."
This report is quite as applicable to the existing usages of
this country as it was to the usages of business in London at the
time it was made. The depositor cannot, therefore, without
injustice to the bank, omit all examination of his account, when
thus rendered at his request. His failure to make it or to have it
made within a reasonable time after opportunity given for that
purpose is inconsistent with the object for which he obtains and
uses a pass book. It was observed in
First National Bank v.
Whitman, 94 U. S. 346 --
although the observation was not, perhaps, necessary in the
decision of the case -- that the ordinary writing up of a bank
book, with a return of vouchers or statement of accounts, precludes
no one from ascertaining the truth and claiming its benefit. Such
undoubtedly is a correct statement of a general rule. It was made
in a case where the account included a check in respect to which it
was subsequently discovered that the name of the payee had been
forged. But it did not appear that either the bank or the drawer of
the check was guilty of negligence. The drawer was not presumed to
know the signature of the payee; his examination of the account
would not necessarily have disclosed the forgery of the payee's
name; therefore his failure to discover that fact sooner than he
did was not to be attributed to want of care. Without impugning the
general rule that an account rendered which has become an account
stated is open to correction for mistake or fraud,
Perkins v.
Hart, 11 Wheat. 256;
Wiggins v.
Burkham, 10 Wall. 132, other principles come into
operation where a party to a stated account, who is under a duty,
from the usages of business or otherwise, to examine it within a
reasonable time after having an opportunity to do so, and give
timely notice of his objections thereto, neglects altogether to
make such examination himself or to have it made in good faith by
another for him, by reason of which negligence the other party,
relying upon the account as having been acquiesced in or
approved,
Page 117 U. S. 108
has failed to take steps for his protection which he could and
would have taken had such notice been given. In other words,
parties to a stated account may be estopped by their conduct from
questioning its conclusiveness.
The doctrine of estoppel by conduct has been applied under a
great diversity of circumstances. In the consideration of the
question before us, aid will be derived from an examination of some
of some of the cases in which it has been defined and applied. In
Morgan v. Railroad Company, 96 U.
S. 720, it was held that a party may not deny a state of
things which by his culpable silence or misrepresentations he has
led another to believe existed, if the latter has acted upon that
belief. "The doctrine," the Court said,
"always presupposes error on one side and fault or fraud upon
the other, and some defect of which it would be inequitable for the
party against whom the doctrine is asserted to take advantage."
In
Continental Bank v. Bank of the Commonwealth, 50
N.Y. 583, it was held not to be always necessary to such an
estoppel that there should be an intention, upon the part of the
person making a declaration or doing an act, to mislead the one who
is induced to rely upon it. "Indeed," said Folger, J.,
"it would limit the rule much within the reason of it if it were
restricted to cases where there was an element of fraudulent
purpose. In very many of the cases in which the rule has been
applied, there was no more than negligence on the part of him who
is estopped. And it has long been held that where it is a breach of
good faith to allow the truth to be shown, there an admission will
estop.
Gaylord v. Van Loan, 15 Wend. 308."
The general doctrine, with proper limitations, was well
expressed in
Freeman v. Cooke, 2 Exch. 658, and in
Carr v. London & Northwestern Railway Co., L.R. 10
C.P. 307. In the first of those cases it was said by Parke, B., for
the whole court, that
"if, whatever a man's real intention may be, he so conducts
himself that a reasonable man would take the representation to be
true and believe that it was meant that he should act upon it, and
did act upon it as true, the party making the representation would
be equally precluded from contesting its truth, and conduct, by
negligence or omission, when there is a duty cast
Page 117 U. S. 109
upon a person by usage of trade or otherwise to disclose the
truth, may often have the same effect."
And in the other case, Brett, J., speaking for the court,
said:
"If in the transaction itself which is in dispute, one has led
another into the belief of a certain state of facts by conduct of
culpable negligence, calculated to have that result, and such
culpable negligence has been the proximate cause of leading and has
led the other to act by mistake upon such belief to his prejudice,
the second cannot be heard afterwards, as against the first, to
show that the state of facts referred to did not exist."
See also Manufacturers' & Traders' Bank v. Hazard,
30 N.Y. 229;
Blair v. Wait, 69 N.Y. 116;
McKenzie v.
British Linen Co., 6 App.Cas. 101;
Miles v.
McIlwraith, 8 App.Cas. 133;
Cornish v. Abington, 4 H.
& N. 549, 556.
Upon this doctrine substantially rests the decision in
Bank of United States v.
Bank of Georgia, 10 Wheat. 340,
23 U. S. 343,
where the question was as to the right of the Bank of Georgia to
cancel a credit given to the Bank of the United States in the
general account the latter kept with the former for the face value
of certain banknotes purporting to be genuine notes of the Bank of
Georgia, and which came to the hands of the other bank in the
regular course of business and for value. The notes were received
by the Bank of Georgia as genuine, but being discovered nineteen
days thereafter to be counterfeits, they were tendered back to the
Bank of the United States, which refused to receive them. This
Court held that the loss must fall upon the Bank of Georgia. Mr.
Justice Story, who delivered the opinion of the Court, after
observing that the notes were received and adopted by the Bank of
Georgia as its genuine notes, and treated as cash, and that the
bank must be presumed to use all reasonable care, by private marks
and otherwise, to secure itself against forgeries and impositions,
said:
"Under such circumstances, the receipt by a bank of forged notes
purporting to be its own must be deemed an adoption of them. It has
the means of knowing if they are genuine; if those means are not
employed, it is certainly evidence of a neglect of that duty which
the public have a right to require. And in respect to persons
equally innocent,
Page 117 U. S. 110
where one is bound to know and act upon his knowledge and the
other has no means of knowledge, there seems to be no reason for
burdening the latter with any loss in exoneration of the former.
There is nothing unconscientious in retaining the sum received from
the bank in payment of such notes, which its own acts have
deliberately assumed to be genuine. If this doctrine be applicable
to ordinary cases, it must apply with greater strength to cases
where the forgery has not been detected until after a considerable
lapse of time."
"Even," he added,
"in relation to forged bills of third persons received in
payment of a debt, there has been a qualification engrafted on the
general doctrine that the notice and return must be within a
reasonable time, and any neglect will absolve the payee from
responsibility."
It was therefore held that as the Bank of Georgia could by
ordinary circumspection have detected the fraud, it must account to
its depositor according to the entry made in its books at the time
of receiving the notes.
The same principle was recognized in
Cooke v. United
States, 91 U. S. 389,
91 U. S. 396.
One of the questions there was as to the effect, on the rights of
the government, of the receipt by an Assistant Treasurer of the
United States in New York of certain Treasury notes, endorsed by
the holders to the order of the Secretary of the Treasury for
redemption in accordance with an act of Congress, and which notes,
when examined at the Treasury Department, were ascertained to be
forgeries, of which prompt notice was given. This Court, speaking
by the Chief Justice, said:
"It is undoubtedly also true as a general rule of commercial law
that when one accepts forged paper purporting to be his own, and
pays it to a holder for value, he cannot recall the payment. The
operative fact in this rule is the acceptance -- or more properly,
perhaps, the adoption -- of the paper as genuine by its apparent
maker. . . . He must repudiate as soon as he ought to have
discovered the forgery; otherwise he will be regarded as accepting
the paper. Unnecessary delay under such circumstances is
unreasonable, and unreasonable delay is negligence, which throws
the burden of the loss upon him who is guilty of it, rather than
upon one who is not."
Again:
"When, therefore, a party is entitled to
Page 117 U. S. 111
something more than a mere inspection of the paper before he can
be required to pass finally upon its character -- as, for example,
an examination of accounts or records kept by him for the purpose
of verification -- negligence sufficient to charge him with a loss
cannot be claimed until this examination ought to be completed. If,
in the ordinary course of business, this might have been done
before payment, it ought to have been, and payment without it will
have the effect of an acceptance and adoption. . . . What is
reasonable must in every case depend upon circumstances; but until
a reasonable time has in fact elapsed, the law will not impute
negligence on account of delay."
This Court, in the two cases last cited, refers with approval to
Gloucester Bank v. Salem Bank, 17 Mass. 43. In that case
it appeared that the Salem Bank exchanged with the Gloucester Bank,
for value, certain banknotes which purported to be, and which both
banks at the time believed to be, the genuine notes of the
Gloucester Bank, and which the latter bank did not, until about
fifty days after the exchange, discover to be forgeries. The
question was whether the Salem Bank was bound to account for the
value of the notes so ascertained to be counterfeit. Chief Justice
Parker, speaking for the whole court, observed that the parties
being equally innocent and ignorant, the loss should remain where
the chance of business had placed it, and that in all such cases
the just and sound principle of decision was that if the loss can
be traced to the fault or negligence of either party, it should be
fixed upon him. He said:
"And the true rule is that the party receiving such notes must
examine them as soon as he had opportunity, and return them
immediately. If he does not, he is negligent, and negligence will
defeat his right of action. This principle will apply in all cases
where forged notes have been received, but certainly with more
strength when the party receiving them is the one purporting to be
bound to pay, for he knows better than any other whether they are
his notes or not, and if he pays them, or receives them in payment
and continues silent after he has had sufficient opportunity to
examine them, he should be considered as having adopted them as his
own. "
Page 117 U. S. 112
These cases are referred to for the purpose of showing some of
the circumstances under which the courts, to promote the ends of
justice, have sustained the general principle that where a duty is
cast upon a person, by the usages of business or otherwise, to
disclose the truth -- which he has the means, by ordinary
diligence, of ascertaining -- and he neglects or omits to discharge
that duty, whereby another is misled in the very transaction to
which the duty relates, he will not be permitted, to the injury of
the one misled, to question the construction rationally placed by
the latter upon his conduct. This principle commends itself to our
judgment as both just and beneficent, for, as observed by the
Supreme Court of Ohio in
Ellis v. Ohio Life Ins. & Trust
Co., 4 Ohio St. 667, while in the forum of conscience there
may be a wide difference between intentional injuries and those
arising from negligence, yet no man conducts himself
"quite as absolutely in this world as though he was the only man
in it, and the very existence of society depends upon compelling
everyone to pay a proper regard for the rights and interests of
others. The law therefore proceeding upon the soundest principles
of morality and public policy, has adapted a large number of its
rules and remedies to the enforcement of this duty. In almost every
department of active life, rights are in this manner daily lost and
acquired, and we know of no reason for making the commercial
classes an exception."
Recurring to the facts of this case, there was evidence tending
to show -- we do not say beyond controversy -- that Cooper failed
to exercise that degree of care which, under all the circumstances,
it was his duty to do. He knew of the custom of the defendant to
balance the pass books of its depositors and return their checks
"as vouchers" for payments, yet he did not examine his pass book
and vouchers to see whether there were any errors in the account to
his prejudice, and therefore he could give no notice of any. Of
course, if the defendant's officers, before paying the altered
checks, could by proper care and skill have detected the forgeries,
then it cannot receive a credit for the amount of those checks,
even if the depositor omitted all examination of his account. But
if by such care
Page 117 U. S. 113
and skill they could not have discovered the forgeries, then the
only person unconnected with the forgeries who had the means of
detecting them was Cooper himself. He admits that by such an
examination as that of March, 1881, he could easily have discovered
them on the balancings of October 7, 1880, November 19, 1880, and
January 18, 1881. If he had discovered that altered checks were
embraced in the account, and failed to give due notice thereof to
the bank, it could not be doubted that he would have been estopped
to dispute the genuineness of the checks in the form in which they
were paid, upon the principle stated by Lord Campbell in
Cairncross v. Lorimer, 3 Macq. 827, 830, that
"if a party has an interest to prevent an act being done, has
full notice of its being done, and acquiesces in it, so as to
induce a reasonable belief that he consents to it, and the position
of others is altered by their giving credit to his sincerity, he
has no more right to challenge the act to their prejudice than he
would have had if it had been done by his previous license."
This, however, could not be if, as claimed, the depositor was
under no obligation whatever to the bank to examine the account
rendered at his instance and notify it of errors therein in order
that it might correct them, and, if necessary, take steps for its
protection by compelling restitution by the forger. But if the
evidence showed that the depositor intentionally remained silent
after discovering the forgeries in question, would the law
conclusively presume that he had acquiesced in the account as
rendered, and infer previous authority in the clerk to make the
checks, and yet forbid the application of the same principle where
the depositor was guilty of neglect of duty in failing to do that,
in reference to the account, which he admits would have readily
disclosed the same fraud? It seems to the Court that the simple
statement of this proposition suggests a negative answer to it.
There was also evidence tending to prove -- we do not say
conclusively -- that the depositor gave practically no attention to
the account rendered by the bank except to that one rendered March
2, 1881; that very slight diligence would have disclosed the fact
that the vouchers, which he knew to be in
Page 117 U. S. 114
the possession of his clerk, were not all that the account upon
its face showed had been returned, and that he entrusted the entire
business to an inexperienced boy, in whose integrity he seemed to
place implicit confidence, and of whose conduct he neglected to
exercise that supervision which ordinary prudence suggested as both
necessary and proper. Upon one occasion, as we have seen, he
discovered an error in the footings of the check book, and failed
to look further because of the assurance of his clerk that he was
seldom caught in a mistake. He was in the habit of looking over his
check book and keeping track of his balance in bank, and yet he did
not observe that he was improperly charged in the balancing of
October 7, 1880, with checks for $500 and $400; in that of November
19, 1880, with checks for $405 and $600.25, and in that of January
18, 1881, with checks for $1,000, $700.25, $1,500, $600, $1,000,
$400, and $2,000. He finally discovered, in March, 1881, that there
was something radically wrong in his account, and sent his pass
book to the bank to be balanced without intimating, so far as the
record shows, that he had then discovered anything to excite
suspicion or to call for explanation. The book having been balanced
and returned to him on March 2, 1881, he then notified the bank
that his clerk had absconded, and forbade the payment of any more
checks the bodies of which were in Berlin's handwriting. Whether
the clerk had absconded and left the state prior to this sending of
the passbook to the bank does not appear. But when next heard of,
so far as the record shows, he was at Wilmington, Delaware, in
June, 1881, when and where he gave his deposition
de bene
esse in behalf of his former principal. The numerous checks
which he confesses to have forged have been destroyed, and the bank
is thereby put at disadvantage upon any issue as to the fact of
forgery, or as to whether the checks may not have been so
carelessly executed at the time they were signed by the depositor
as to have invited or given opportunity for these alterations by
his confidential clerk.
Van Duzer v. Howe, 21 N.Y. 531,
538;
Redlich v. Doll, 4 Bing. 253;
Greenfield Savings
Bank v. Stowell, 4 Mass. 196, 202. Still further, if the
depositor was guilty of
Page 117 U. S. 115
negligence in not discovering and giving notice of the fraud of
his clerk, then the bank was thereby prejudiced because it was
prevented from taking steps, by the arrest of the criminal, or by
an attachment of his property or other form of proceeding, to
compel restitution. It is not necessary that it should be made to
appear by evidence that benefit would certainly have accrued to the
bank from an attempt to secure payment from the criminal. Whether
the depositor is to be held as having ratified what his clerk did
or to have adopted the checks paid by the bank and charged to him
cannot be made in this action to depend upon a calculation whether
the criminal had at the time the forgeries were committed or
subsequently, property sufficient to meet the demands of the bank.
An inquiry as to the damages in money actually sustained by the
bank by reason of the neglect of the depositor to give notice of
the forgeries might be proper if this were an action by it to
recover damages for a violation of his duty. But it is a suit by
the depositor, in effect, to falsify a stated account to the injury
of the bank, whose defense is that the depositor has, by his
conduct, ratified or adopted the payment of the altered checks, and
thereby induced it to forbear taking steps for its protection
against the person committing the forgeries. As the right to seek
and compel restoration and payment from the person committing the
forgeries was in itself a valuable one, it is sufficient if it
appears that the bank, by reason of negligence of the depositor,
was prevented from promptly, and it may be effectively, exercising
it.
Continental Bank v. Bank of the Commonwealth, above
cited;
Voorhis v. Olmstead, 66 N.Y. 113, 118;
Knights
v. Wiffen, L.R. 5 Q.B. 660;
Casco Bank v. Keene, 53
Me. 103;
Fall River Bank v. Buffinton, 97 Mass. 499.
It seems to us that if the case had been submitted to the jury
and they had found such negligence upon the part of the depositor
as precluded him from disputing the correctness of the account
rendered by the bank, the verdict could not have been set aside as
wholly unsupported by the evidence. In their relations with
depositors, banks are held, as they ought to be, to rigid
responsibility. But the principles governing those relations ought
not to be so extended as to invite or encourage
Page 117 U. S. 116
such negligence by depositors in the examination of their bank
accounts as is inconsistent with the relations of the parties or
with those established rules and usages, sanctioned by businessmen
of ordinary prudence and sagacity, which are or ought to be known
to depositors.
We must not be understood as holding that the examination by the
depositor of his account must be so close and thorough as to
exclude the possibility of any error whatever being overlooked by
him. Nor do we mean to hold that the depositor is wanting in proper
care when he imposes upon some competent person the duty of making
that examination and of giving timely notice to the bank of
objections to the account. If the examination is made by such an
agent or clerk in good faith, and with ordinary diligence, and due
notice given of any error in the account, the depositor discharges
his duty to the bank. But when, as in this case, the agent commits
the forgeries which misled the bank and injured the depositor, and
therefore has an interest in concealing the facts, the principal
occupies no better position than he would have done had no one been
designated by him to make the required examination -- without at
least showing that he exercised reasonable diligence in supervising
the conduct of the agent while the latter was discharging the trust
committed to him. In the absence of such supervision, the mere
designation of an agent to discharge a duty resting primarily upon
the principal cannot be deemed the equivalent of performance by the
latter. While no rule can be laid down that will cover every
transaction between a bank and its depositor, it is sufficient to
say that the latter's duty is discharged when he exercises such
diligence as is required by the circumstances of the particular
case, including the relations of the parties, and the established
or known usages of banking business.
It was insisted in argument that the grounds upon which the
circuit court proceeded are sustained by the settled course of
decision in the highest court of New York, as manifested in
Weisser v. Denison, 10 N.Y. 68, 70;
Welsh v.
German-American Bank, 73 N.Y. 424, and
Frank v. Chemical
Bank, 84 N.Y. 213. We are also referred to
Manufacturers'
Bank v.
Page 117 U. S. 117
Barnes, 65 Ill. 69, and
National Bank v.
Tappean, 6 Kan. 456, 467. There are, it must be conceded, some
expressions in the first two cases which at first glance seem to
justify the position of counsel. But it is to be observed in
reference to the case of
Weisser v. Denison that it is
said in the opinion of the court that as the bank had not taken any
action nor lost any rights in consequence of the silence of the
depositor, the only effect of such silence was to cast the burden
upon him to show fraud, error, or mistake in the account rendered
by the bank. From
Welsh v. German-American Bank it is
clear that the comparison by the depositor of his check book with
his pass book would not necessarily have disclosed the fraud of his
clerk, for the check when paid by the bank was, in respect of date,
amount, and name of payee, as the depositor intended it to be, and
the fraud was in the subsequent forgery by the clerk of the payee's
name. As the depositor was not presumed to know, and as it did not
appear that he in fact knew, the signature of the payee, it could
not be said that he was guilty of negligence in not discovering,
upon receiving his pass book, the fact that his clerk or some one
else had forged the payee's name in the endorsement.
The latest expression of the views of the Court of Appeals of
New York is in
Frank v. Chemical National Bank. From what
is there said, it is evident that that learned tribunal does not
give its sanction to the broad proposition that a depositor who
obtains periodical statements of his account, with the vouchers, is
under no duty whatever to the bank to examine them and give notice
within a reasonable time of errors discovered therein. The court in
that case, speaking by Judge Andrews, who delivered the opinion in
Welsh v. German-American Bank, refers to
Weisser v.
Denison. After observing that it was unnecessary to restate
the grounds of that decision and adverting to the argument that
where a pass book was kept, which was balanced from time to time
and returned to the depositor with the vouchers for the charges
made by the bank, including forged checks, the latter is under a
duty to the bank to examine the account and vouchers with a view to
ascertain whether the account is correct, he proceeds:
"It does
Page 117 U. S. 118
not seem to be unreasonable, in view of the course of business
and the custom of banks to surrender their vouchers on the
periodical writing up of the accounts of depositors, to exact from
the latter some attention to the account when it is made up, or to
hold that the negligent omission of all examination may, when
injury has resulted to the bank, which it would not have suffered
if such examination had been made and the bank had received timely
notice of objections, preclude the depositor from afterwards
questioning its correctness. But where forged checks have been paid
and charged in the account and returned to the depositor, he is
under no duty to the bank to so conduct the examination that it
will necessarily lead to the discovery of the fraud. If he examines
the vouchers personally and is himself deceived by the skillful
character of the forgery, his omission to discover it will not
shift upon him the loss which, in the first instance, is the loss
of the bank. Banks are bound to know the signatures of their
customers, and they pay checks purporting to be drawn by them at
their peril. If the bank pays forged checks, it commits the first
fault. It cannot visit the consequences upon the innocent depositor
who, after the fact, is also deceived by the simulated paper. So,
if the depositor, in the ordinary course of business, commits the
examination of the bank account and vouchers to clerks or agents,
and they fail to discover checks which are forged, the duty of the
depositor to the bank is discharged, although the principal, if he
had made the examination personally, would have detected them. The
alleged duty at most only requires the depositor to use ordinary
care, and if this is exercised, whether by himself or his agents,
the bank cannot justly complain although the forgeries are not
discovered until it is too late to retrieve its position or make
reclamation from the forger."
In
Manufacturers' National Bank v. Barnes, the Supreme
Court of Illinois, while expressing its approval of the decision in
Weisser v. Denison, shows that the bank was itself guilty
of negligence in paying checks drawn by the depositor's clerk, for
it had in its possession, placed there by the depositor, written
evidence that the authority of the clerk to draw checks against the
depositor's account was restricted to a designated period,
Page 117 U. S. 119
which had expired when the checks there in dispute were paid.
Nor does the case cited from the Supreme Court of Kansas militate
against the views we have expressed, although it refers with
approval to
Weisser v. Denison. The question there was as
to the right of the bank to charge the depositor with the amount of
a certain forged acceptance. The court found that the depositors
were not guilty of neglect, and gave notice of the forgery as soon
as it was discovered.
An instructive case is that of
Dana v. National Bank of the
Republic, 132 Mass. 156, 158, where the issue was between a
bank and its depositor in reference to a check which the latter's
clerk altered after it had been signed and before it was paid by
the bank. The court said that the plaintiffs, who were the
depositors, owed to the bank
"the duty of exercising due diligence to give it information
that the payment was unauthorized, and this included not only due
diligence in giving notice after knowledge of the forgery, but also
due diligence in discovering it. If the plaintiffs knew of the
mistake, or if they had that notice of it which consists in the
knowledge of facts which by the exercise of due care and diligence
will disclose it, they failed in their duty, and adoption of the
check and ratification of the payment will be implied. They cannot
now require the defendant to correct a mistake to its injury from
which it might have protected itself but for the negligence of the
plaintiffs. Whether the plaintiffs were required, in the exercise
of due diligence, to read the monthly statements or to examine the
checks, and how careful an examination they were bound to make, and
what inferences are to be drawn depend upon the nature and course
of dealing between the parties and the particular circumstances
under which the statements and checks were delivered to them."
So in
Hardy v. Chesapeake Bank, 51 Md. 562, 591, which
was also a case where checks forged by the confidential clerk of
the depositor had been paid by the bank, and, as shown by the pass
book, were charged to his account. The court, upon an elaborate
review of the authorities, said upon the general question that
"there is a duty owing from the customer to the bank to act with
that ordinary diligence and care that prudent businessmen
generally
Page 117 U. S. 120
bestow on such cases, in the examination and comparison of the
debits and credits contained in his bank or pass book, in order to
detect any errors or mistakes therein. More than this under
ordinary circumstances could not be required."
What has been said applies mainly to the issue between the
parties in relation to the altered checks embraced in the
balancings of October and November, 1880, and January, 1881. The
case in reference to checks 8,518 and 8,550 presents a somewhat
different aspect. Cooper, we infer from the evidence, became aware,
on March 2, 1881, when these checks were returned with his pass
book, balanced as of that date, that they were forgeries. But it is
not clear from the evidence at what time or on what day he gave the
bank notice of that fact, or generally of the fact that there had
been alterations in his checks. It may be that the account rendered
on March 2, 1881, did not, by reason of any unnecessary delay,
become an account stated as to items subsequent to the balancing of
January 18, 1881, and consequently there may be no ground to charge
the depositor with negligence in not giving due notice to the bank
of the alleged alterations of those two checks.
It remains only to consider the action of the court below in
reference to the second cause of action. Touching this branch of
the case, the essential facts are:
Cooper, on August 25, 1880, in his capacity as "agent for
Ashburner & Co.," made his check upon the Leather
Manufacturers' National Bank for $280.97, payable to the order of
"W. B. Cooper, Jr., Agent." On the side of the check were the
printed words "Wm. B. Cooper, Agent." Across its face was the word
"Gold." Upon the back of the check, before it was endorsed, were
the following words, printed or stamped:
"
For deposit in"
"
Leather Manf's Nat. Bank"
"
to the credit of"
"
________________________"
"
Ag't for Ashburner & Co."
Cooper endorsed the check in question by writing "W. B.
Page 117 U. S. 121
Cooper, Agent," on the line immediately below the words "Leather
Manf's Nat. Bank," that is, on the line occupied by the words "to
the credit of," and so as almost to obliterate the latter words.
Thus endorsed, the check was delivered by Cooper to Berlin for the
purpose, as the former states, of having it deposited to his credit
as agent of Ashburner & Co. Berlin presented it at the bank,
and received the money on it, but never accounted therefor to his
principal. When Cooper first discovered that his clerk collected
the amount of that check does not appear. He makes no statement on
that subject.
The peremptory instruction to find against the bank upon this
cause of action was perhaps based mainly upon the assumption that
the endorsement imported a direction to place the amount of the
check to the credit of Cooper as agent for Ashburner & Co. But
there is ground to contend that such was not the intention of
Cooper. Evidently he had for use a stamp by which he could print
the foregoing words upon checks which he desired placed to his
credit as agent for Ashburner & Co., leaving a blank line for
his own signature. The object of this was to save time and writing.
It might be asked why should he, as agent for Ashburner & Co.,
draw a check payable to his own order as such agent, and then
direct the bank, by his endorsement as agent, to place the money to
the credit of himself as agent for Ashburner & Co., with one
hand taking the money out of his account as agent, and with the
other putting it back immediately into the same account? And it
might be argued that if he intended, by his endorsement, to direct
the money to be placed to the credit of himself as agent of
Ashburner & Co., he would have written his name in the blank
line underneath the words "to the credit of," but that to prevent
any such disposition of the money, he obliterated the operative
words in the stamped lines on the back of the check by writing his
name across the words "to the credit of," thus making, what the
bank claims was intended, an endorsement in blank, entitling the
bearer of the check to receive the money. Or if his purpose was to
take out of his account, as agent, the sum specified in his check,
and at the same time show that the money was not to be used by him
for his personal benefit, but
Page 117 U. S. 122
for his principal's, what he did would naturally effect that
object. If the endorsement was made in such manner as fairly to
indicate that it was intended to be in blank, the loss should fall
on the depositor whose negligence caused the mistake. These
observations are not intended as an expression of opinion as to the
weight of evidence upon this branch of the case. They are intended
only to show that the case, as to the check for $280.97, was not
clearly for the plaintiffs, and ought to have been submitted to the
jury.
It results from what has been said that the court erred in
peremptorily instructing the jury to find for the plaintiffs. Both
causes of action are peculiarly for a jury to determine, under such
instructions as may be consistent with the principles announced in
this opinion. Whether the plaintiffs are estopped, by the
negligence of their representative, to dispute the correctness of
the account as rendered by the bank from time to time is, in view
of all the circumstances of this case, a mixed question of law and
fact. As there is, under the evidence, fair ground for controversy
as to whether the officers of the bank exercised due caution before
paying the altered checks, and whether the depositor omitted, to
the injury of the bank, to do what ordinary care and prudence
required of him, it was not proper to withdraw the case from the
jury.
Railroad Co. v.
Stout, 17 Wall. 657,
84 U. S. 663,
and
Cooke v. United States, Wiggins v. Burkham, Dana v. Bank of
the Republic, and
Hardy v. Chesapeake Bank, ubi
supra.
The judgment is reversed and the cause remanded for a new
trial and for further proceedings in conformity with this
opinion.
MR. JUSTICE BLATCHFORD did not sit in this case, or take any
part in its decision.