Marine Bank v. Stirling

Boyd, C. J., delivered the opinion of the Court. The appellee sued the appellant to recover a balance due him on his account with the bank in its savings department. The defendant plead the general issue, payment and set-off. The appellee had two accounts in the bank—one in the savings department and the other being what is spoken of as his “cheeking account”—and the plea of set-off was based on the claim of the appellant that the appellee had largely overdrawn his “checking account” and owed it considerably more ⁹⁶ than the amount admitted to be deposited in his savings account.

There are seventeen bills of exception in the record, sixteen of which embrace rnlings on the admissibility of evidence, and the seventeenth presents the rulings on the prayers. The plaintiff offered five prayers, the first, second and third of which were granted, and the other two rejected, and the defendant also offered five, the first of which was granted as amended, the fifth was granted as offered, and the others were rejected. The trial resulted in a verdict for the plaintiff for $1,530.21, that being the balance due on the savings account. Erom the judgment rendered on that verdict this appeal was taken.

The plaintiff had two books in the savings department, but one is a continuation of the other; the balance in book No. 1 having been carried to book No. 2. In those books there is printed what purport to be extracts from the by-laws of the bank. Among other provisions, is one that, “The book shall also contain such extracts from the charter and by-laws of the bank, signed by the president, as may be interesting to the depositor.” At the end of the printed matter is a blank line with the word “President” under it, but his signature is not in either book. The plaintiff identified the books handed to him on the witness stand, and testified that the entries were made by the officials of the bank, showing a balance of $1,530.21, the last entry being on February 1st, 1909.

The plaintiff’s attorney then offered' and read in evidence the entries of deposits and withdrawals as shown on said books Nos. 1 and 2. The witness further testified that the printed part of the books was in them at the time they were issued to him, and the plaintiff’s attorney undertook to read the printed part of said books to the jury, but thfe defendant objected, and the objection being overruled the defendant excepted. ' That constitutes the first bill of exceptions. The plaintiff then offered1 the books in evidence, but the defendant objected. The objection was overruled, and the books and everything in them were admitted in evidence.

That ruling is embraced in the second bill of exceptions. ⁹⁷ There was no error in those rulings. It is true that the signature of the president does not appear in'the books, hut they were issued to the plaintiff, as testifid by him and not denied by the defendant. The terms tipon which the deposits were made are to be found in them—amongst others that, “Depositors shall have the right to withdraw their deposits at any time, by giving one month’s notice of their intention; but this notice may be dispensed with, in the discretion of the officers of the bank, and the same paid on demand.” It would scarcely be contended that the appellee could under that provision have withdrawn his deposits without giving one month’s notice, because the president’s signature was not in the books. Nor could it be successfully contended that after such notice was given he could not have withdrawn his deposits, together with interest allowed under the terms stated'—unless, of course, there was some valid reason other than the absence of the president’s signature.

If the absence of the president’s signature had that effect, the bank could profit by its own wrong or neglect in not having the signature attached, as provided by its by-laws. When the appellee accepted the books he did so on the terms therein mentioned, and from October 11th, 1907, the date of the first deposit until February 1st, 1909, the time of the last deposit, both he and the officials of the bank acted under that contract over and over again. It was certainly permissible to offer the books to show the deposits and withdrawals, and as the terms on which the deposits were made were in the books, we can see no reason for excluding them, but on the contrary it was proper to put them in evidence in order to prove the conditions on which the deposits could be withdrawn. .Nor do we find error in permitting the plaintiff to answer the question included in the third bill of exceptions. He had been cross-examined at some length, as to an interview he had had at the bank about his deposits.

He had said that it was strange he could not see Ms deposit slips for all the money he had put in the hank, and' on re-direct examination ⁹⁸ he was asked to state what he had said about the amount of his deposits, and replied: “I said, £It is strange, Mr. Stanford, that I can’t see my deposit slips running more than $20 to $120.’ I am positive I have put more money in that bank than they have given me credit for. I didn’t make out all the deposit slips myself, but part of them were made out by someone else.” He was then asked, “What did you say about the deposit slips?” Which question was objected to, and the objection was overruled. His answer was, “The ones that I saw? I saw a majority of them, but there was some of them missing.

There was some that appeared agreeable to me but there was a considerable number of them that was so small that I thought it strange. I know I put more money in there than I got credit for, and I don’t think I got justice.” The theory of the defendant was that the plaintiff’s account was overdrawn, and it was undertaking to show .the amount he had deposited and the amount he had cheeked out. The plaintiff on the other hand contended that he had ■deposited more than the deposit slips showed, and under the ■circumstances we can see no reason why that testimony was mot admissible. .In-the fourth bill of exceptions the testimony of Dr. Atkinson, the president of the bank, begins,'—the plaintiff having rested. The doctor had testified in chief that at interviews ■at the bank in Febraary, 1909, the plaintiff went over every ■check that he had drawn, was shown his deposits and acknowledged every cheek that was shown him; that he was told the amount he had' overdrawn and was shown the individual ledger containing his account.

He further testified that there were a number of plaintiffs checks' found loose in the bank, which had not been posted on the ledger or charged against plaintiff’s account, which caused the overdraft. Amongst other questions asked him on cross-examination was: “Dr. what connection did you have with the reports of the bank ?” That was objected to, and the objection being overruled, the fourth exception was taken. That was also in our judgment admissible. The doctor having testified that the plaintiff had ⁹⁹ overdrawn his account, the evident purpose was to ascertain the doctor’s connection with the reports which were made by the bank and the subsequent testimony shows that such was the case, if there was any doubt about it then.

In the next exception (the fifth) the doctor was ■ asked: “What was the capital stock of the bank?” The object of that was to reflect upon the controverted question, whether there was an over draft such as the defendant claimed. It had claimed $6,000 in its plea of set off, and it contended that there were overdrafts by the plaintiff amounting to $5,700.00. The theory of the defendant was that the overdrafts were the result of a number of checks not being charged against the plaintiff’s account,—they being “found loose in the bank,” as the doctor had testified. If the bank was a small one with a capital of only $25,000, such a discrepancy would likely be more easily detected than if it had a large capital and was doing a large business.

So we think there was no error in either the fourth or fifth bills of exception. That brings us to the sixth, which further shows the relevancy of those questions. While Dr. Atkinson was still under cross-examination, he was handed a copy of the Cidsfield Times, dated December 5th, 1908, and testified that he had seen a statement or report of the condition of the Marine Bank of Crisfield published therein, and was asked if he had a copy of that report, to which he replied he had not, and added, “I inquired of the cashier'and he said that he had none except some lead pencil notes, which he could not furnish me; that the original copy was on file at the treasurer’s office.” Whereupon the plaintiff offered said statement, as contained in the Crisfield Times, to which the defendant objected, but the objection was overruled and the Court permitted it to be admitted in evidence. Before reading the report to the jury the witness was asked, “Will you look at that report which has been offered in evidence, marked ‘B. M. E. J.’ Is that a copy of the report,” and answered, “Yes, sir; that is a copy of the report.” It purported to be a report of the condition of the ¹⁰⁰ appellant’s bank at the close of business November 27, 1908.

It stated the resources and liabilities, in the usual form of such publications, purported to be sworn to by the cashier, and was attested by three directors, including Dr. Atkinson. The manifest purpose of the offer was to show that in the published report was the statement, “Overdrafts, secured and unsecured, 82.04.” As in February, 1909, the defendant claimed that the plaintiff was overdrawn $5,700.00, and it was not pretended that all of such overdrafts occurred between the date of the publication of the report and the early part of February, about two months, it was proper to show that the appellant had published that the total overdrafts of the bank on November 27th, 1908, were $82.04. Of course it was not conclusive, but the appellant was at liberty to explain it, and did undertake to do so by offering evidence tending to show that the overdrafts were not discovered until afterwards, because the checks had not been posted. But the plaintiff was not concluded by that explanation, and the discrepancy showed such irregularities as might well have caused the jury to decline to accept the claim of the bank as correct, for if checks amounting to $5,700.00 could be loose in the bank, and not entered on the books, the jury might have concluded that the plaintiff was right in saying that he was entitled to more credits than the bank gave him.

There was no contention about the plaintiff’s account in the savings department, and the burden was on the defendant to establish the overdrafts. 19 JEncy. of PI. & Pr. 800. It is contended, however, that the publication was not admissible because it was merely a copy. But it is only-a summary of the report made to the treasurer which is by section 12 of Article 11 of the Code required to be published in some newspaper published in the county where the bank is located, and it is not necessarily a copy of the report made to the treasurer. Such publications are intended for the benefit of the public, as.Dr. Atkinson well said, and it would be difficult to prove the authenticity of a statement so published in a more definite way than was done in this case—■ ¹⁰¹ being proven by the president, who had attested it.

It cannot be said that such a publication is a copy in the sense that