Sweeney v. Boston Five Cents Savings Bank

Ames, J.

We do not find, upon the facts stated in this report, any ground for the conclusion that the defendant corporation made any express contract with the plaintiff, or made itself liable to him, under any implied contract, for the payment of any portion of the deposit in question. On the contrary, upon the occasion of the first deposit, he went in company with his wife to the bank, and the money, though furnished by him, was entered in the defendant’s books as her money, and the book, which is the appropriate evidence of the deposit, was delivered to her, and purports on its face to be her property. The book is evidence of a contract of the defendant with her; and it appears from the report that this contract was made with his sanction and concurrence. The subsequent deposits, though made by him and with funds belonging to him, were nevertheless entered in the defendant’s accounts as her deposits, and were credited to her and in her book with his authority. It does not appear that the defendant was notified that he claimed the money as his own, or was informed that there was any understanding between him and her that the money was to be subject to his control until after the deposits were all made.

Upon tLis state of the case, proof that it was his money, and that he never intended to give it to his wife, is not sufficient to make out an implied promise to return it to him. It was received by the defendant under an express promise to account for it to her, or to such person as she shall appoint, upon the production *386 of the deposit book. The case does not make it necessary to consider what circumstances will excuse the owner of a deposit from the actual production of the deposit book, or whether he may recover upon proof of its loss, upon giving proper indemnity, as in the case of a lost promissory note. The difficulty in the plaintiff’s case is not that he has lost the book, or that it is wrongfully taken from him, but that it is not his book. On the contrary, so far as the defendant corporation is concerned, it is rightfully in the hands of the party in whose name it was made out, and who is the only person with whom the defendant has made any contract upon which it can be called to account. This contract was expressly made with the plaintiff’s wife, by his authority, and in fact by his procurement. It is not a case, therefore, of a principal seeking to avail himself of a contract made with his agent in the name of the agent. The deposits were not made by the wife for the benefit of the husband, and as his agent, but by the husband, upon an express contract that they should be paid to the wife. In this respect the case differs from McCluskey v. Provident Institution for Savings, 103 Mass. 300 .

Judgment on the verdict for the defendant.