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unless it was guilty of gross negli- were kept, had been burglarized and gence it is not liable for the loss of

said stamps stolen therefrom. At such a deposit.

the conclusion of the evidence there Merchants Nat. Bank v. Guilmartin, was a directed verdict in favor of 88 Ga. 797, 17 L.R.A. 322, 15 S. E. 831,

appellee, and judgment accordingly, 93 Ga. 503, 44 Am. St. Rep. 182, 21

from which appellant prosecutes S. E. 55; Foster v. Essex Bank, 9 Am. Dec. 168 and note, 17 Mass. 479, 1 Am.

this appeal. Neg. Cas. 502; First Nat. Bank v.

A reversal is asked upon that acOcean Nat. Bank, 60 N. Y. 278, 19 Am. tion of the court. Therefore, the Rep. 181; Lloyd v. West Branch evidence must be treated as proving Bank, 15 Pa. 172, 53 Am. Dec. 581, 1 every fact favorable to appellant's Am. Neg. Cas. 574; Scott v. National

case which it either proves or tends Bank, 72 Pa. 471, 13 Am. Rep. 711;

to prove.

So considering the eviFirst Nat. Bank v. Graham, 79 Pa. 106, 21 Am. Rep. 49; First Nat. Bank v.

dence, appellant made the following Rex, 89 Pa. 308, 33 Am. Rep. 767; Whit

case: Appellee had in its bank a ney v. First Nat. Bank, 55 Vt. 155, 45 Corliss safe, in which it kept its Am. Rep. 598, 1 Am. Neg. Cas. 582; money, Liberty bonds of its cusIsham v. Post, 38 Am. St. Rep. 780, tomers, and other valuables. In adnote; Merchants' Nat. Bank v. Carhart, dition, it had a steel-lined vault in 51 Am. St. Rep. 101, note; Gray v. which it kept as special deposits the Merriam, 32 L.R.A. 771, note.

war saving stamps of its customers, The bank does not undertake to exercise any greater care in the pres

as well as other valuables. In June, ervation of special deposits than the

1918, appellant purchased through depositor has reasonable right to sup

appellee United States war saving pose is exercised in keeping the bank's stamps of the maturity value of property of like description.

$1,000, which he left on special deUnited Soc. v. Underwood, 9 Bush, posit with appellee for safe-keeping. 609, 15 Am. Rep. 731; Preston v. These stamps were placed by an Prather, 137 U. S. 604, 34 L. ed. 788,

officer of the appellee in its said 11 Sup. Ct. Rep. 162, 1 Am. Neg. Cas.

vault. In the summer or early 599.

fall of 1919 the vaults of a good As a general rule a bank is not liable for loss of a special deposit for

many banks over the country were which it receives no compensation, by

being burglarized, and United the theft of its cashier or other serv

States Liberty bonds and war savant, provided it has not been guilty ing stamps stolen therefrom. APof negligence in any respect.

pellant, learning of this fact through Merchants Nat. Bank v. Guilmartin, the public press, approached Mr. 88 Ga. 797, 17 L.R.A. 322, 15 S. E. 831; Fort, who was the active president Foster v. Essex Bank, 17 Mass. 479, 9

of appellee bank as well as a diAm. Dec. 168, 1 Am. Neg. Cas. 502; Smith v. First Nat. Bank, 99 Mass. 605,

rector therein, and stated to him 97 Am. Dec. 59, 1 Am. Neg. Cas. 523;

that, in view of these burglaries, Scott v. National Bank, 72 Pa. 471,

he was uneasy about his war sav13 Am. Rep. 711; First Nat. Bank v. ing stamps remaining in appelRex, 89 Pa. 308, 33 Am. Rep. 767. lee's said vault, and therefore de

sired to remove them to another Anderson, J., delivered the opin

bank for safe-keeping. Mr. Fort in ion of the court:

response stated that if appellant Appellant, John M. Miller, sued

would permit his stamps to remain appellee, Bank of Holly Springs, in

in appellee bank, he would, in order the circuit court of Marshall county

to assure their safety, put them in for the value of United States war the Corliss safe, where the money saving stamps owned by him of the of the bank was kept; and in this maturity value of $1,000, which ap- connection stated that it would take pellee held as a special deposit, and a burglar twenty-four hours to get failed to return to appellant on de- into said Corliss safe. Thereupon mand because of the fact that its appellant agreed that the stamps bank vault, where said stamps should remain on deposit with ap(131 Miss. 55, 95 So. 129.) pellee upon condition that they were said contract was one of special put in that safe. In November bailment, with sufficient considera1919, appellee's vault was burglar- tion to support it, and appellee, havized, and the appellant's stamps ing violated its terms, is liable to stolen therefrom, appellee having appellant for the loss suffered by failed to place them in its Corliss him as the result of such breach, safe as agreed, which was not bur- and that whether appellee was negglarized, and therefore appellant's ligent or not in handling said loss was caused by appellee's breach stamps has no bearing on the quesof its agreement.

tion of its liability to appellant. Appellee contends that under the Was said contract based on a sufprovisions of its charter the action ficient consideration in law? If it of its officers in receiving special was, appellee is liable to appellant deposits of this character was ultra for his loss, regardless of the facts vires, for the reason that its charter that it took the same care of appeldid not authorize it to receive that lant's stamps that it did of its own character of deposits. Section 4 of and those of its other depositors, appeilee's charter, among other and regardless of whether such powers, confers on appellee (quot- care constituted negligence or not, ing its language): "That said com- for the contract was binding accordpany shall be authorized to receive ing to its terms. on deposit, in any sum not less than The evidence shows that appel$1 in value of gold or silver coin, lant was a regular customer of apbullion, bank notes, Treasury notes, pellee, not only as a special deposior other valuable thing." (Italics tor, but as a general depositor with ours.)

a checking account. The court We are of the opinion that United knows, and will take judicial notice States war saving stamps come of what is a matter of common within the language as well as the knowledge, that receiving and keep

intent and purpose ing for their customers special deBank-power to

of appellee's char- posits of valuables of the character guard valuables.

ter. “Other valu- here involved is a large and very able thing” is very broad and com- important part of the business of prehensive. It is sufficient to in- banks; the main purpose being to clude anything of value which is induce such depositors to keep with ordinarily deposited with banks for them their surplus moneys on safe-keeping And, furthermore, checking, time deposit, and savings appellee's managing officers so con- accounts. In fact, a bank refusing strued its charter, and in dealing its customers such facilities for with its customers acted on such the safe-keeping of their valuables construction; therefore, if there would be at a great disadvantage in were any ambiguity in its charter competing with other banks furin that respect, such construction nishing such means. would control as between appellee There is a sufficient consideraand its customers relying thereon. tion for a promise if there be any

Appellee contends that said con benefit to the promisor or any loss, tract of deposit was without con- detriment, or incon

Contract-consideration moving to it; therefore venience to the siderationit held said deposit merely as a

sufficiency.

promisee. The congratuitous bailee, and is not liable sideration to be sufficient in law to appellant for its loss unless such need not be adequate. The considloss was caused by appellee's negli- eration is sufficient if the person to gence, and, there being no evidence whom the promise is made refrains of such negligence, the action of from doing anything which he has the trial court in directing a verdict the right to do, whether there be for appellee was authorized. On the any actual loss to him, or actual other hand, appellant contends that benefit to the party making the

Bank-loss of

promise or not. 13 C. J. $ 150, pp. consideration to uphold a contract, 315, 316; Lawson, Contr. 2d ed. $$ so that there is a consideration, 98, 99, pp. 116, 117. The latter au- though trivial, moving the parties. thority in $ 99, page 117, illustrates Loss or injury to one of the parties, the principle thus: “If A promise or benefit to the other, may be a sufB to pay him $5 if he will not eat ficient consideration." a dinner, or $10 if he will not wear Applying those principles to the his best coat for a day, B’s abstain- case here: Appellant had the right ing from eating his dinner and re- to remove his war saving stamps to fraining from wearing his coat are another bank than appellee's for sufficient to support A's promise, safe-keeping. Appellee induced apfor B has a legal right to do both of pellant to refrain from doing so by these things. In a New York case, promising to remove said stamps an uncle promised a nephew that into its Corliss safe and there keep if he would refrain from drinking them. It seems clear that under liquor, using tobacco, swearing, and the authorities referred to there was playing certain games for money sufficient consideration for said conuntil he came of age, he would pay tract, and it bound appellee to do him $5,000. The nephew kept his what it therein agreed to do. This side of the bargain, but, when sued identical question was involved in for the money, the uncle claimed Tallahatchie Comthat the agreement was not founded press & Storage Co. saving stampson a valid consideration. But the

V. Hartshorn, 125 burglary-liacourt said: 'It is sufficient that he Miss. 662, 17 A.L.R. restricted his lawful freedom of ac- 974, 88 So. 278. That was a suit tion within certain limits upon the for damages. by Mrs. Hartshorn faith of his uncle's agreement.' against the compress company for

In discussing the question as to a breach of contract for the storage what was necessary to constitute a by the latter of cotton belonging to sufficient consideration to uphold a her. The compress company was promise, this court in Byrne v. engaged in storing and compressing Cummings, 41 Miss. 192, said:

cotton. Its warehouse contained a “Any benefit resulting to the brick compartment and a wooden party promising, by the act of the compartment. Mrs. Hartshorn conpromisee, is a sufficient considera- sidered the latter unsafe, and detion. And it is not essential that clined to store her cotton with the there should be any adequacy in compress company unless it was put point of actual value, but a slight in the brick compartment, which benefit will be sufficient.

the compress company agreed to do, “So, also, any loss, trouble, or in- but failed to do; and a fire in the convenience sustained by the prom- compress destroyed said wooden isee, at the instance of the person compartment and along with it Mrs. making the promise, will be a good Hartshorn's cotton, which was consideration, although such trou- therein stored, while the cotton in ble, loss, or obligation be of a trifling the brick compartment was undamdescription, provided it be not ut- aged. No contract was shown by terly worthless in law and fact; and which Mrs. Hartshorn agreed to pay although the person making the any more than the ordinary storage promise obtained no benefit or ad- rate. The court held that the convantage from the performance of tract involved was one of a special the stipulated act by the promisee. bailment, and the compress comThese principles are to be found in pany, having breached it, was liable every elementary treatise on the for Mrs. Hartshorn's loss. The law of contracts.'

court said, among other things: And in Magee v. Catching, 33 “When a warehouseman agrees to Miss. 672, it was said: “The law store goods in a particular place and never looks to the amount of the complies with his contract, he is, of (131 Hi88. 55, 95 So. 129.) course, not liable for the loss of tract of bailment is fixed by law, these goods, unless this loss be due while the obligations of the parties to his negligence. This rule is ele- under a special contract of bailment mentary But when he agrees to are fixed by the terms of the constore goods in a particular place tract itself. We think the authorand stores them in a different place, ities referred to by counsel touching he has breached his contract of bail- the care to be exercised by a bailee ment, and is therefore responsible for hire, as well as a gratuitous for the return of the goods or for bailee under a general contract of their value. He stores them in a bailment, are without application different place at his own peril. here; for this contract comes withThis rule is thus laid down in Elli- in the definition of neither of those. otton Contracts, vol. 4, § 3100: By the bailment here involved ap“The warehouseman must comply pellant simply agreed to refrain with the contract of storage. If he from removing his war saving has contracted to store goods in a stamps from appellee's custody upspecified warehouse, or in a particu- on condition appellee would in the lar place, and stores them in a dif

future keep them in its Corliss safe, ferent place, it is at his own risk,

which appellee agreed to do. In our and he is liable for any injury which

judgment this was a binding conoccurs, even without his own negli- tract, and appellee is liable to apgence. In the case now before the court pellant for the loss he sustained be

cause of the breach thereof by the we have not a general contract of

former. bailment, but a special contract of bailment. The care to be exercised

Reversed and remanded. by a bailee under a general con- Suggestion of error overruled.

ANNOTATION.

Liability of bank for loss of Liberty bonds and war saving stamps.

The early cases involving the liability of a bank for the loss of Liberty bonds are treated in the annotation in 17 A.L.R. 1217, the present treatment, so far as that question is concerned, being merely supplementary thereto.

As to liability of bank as bailee for loss of securities or contents of safety deposit boxes by theft, see annotation in 26 A.L.R. 253 and 259. Liberty bonds.

(Supplementing annotation in 17 A.L.R. 1217.)

In Thornton v. Athens Nat. Bank (1923) — Tex. Civ. App. —, 252 S. W. 278, where Liberty bonds were deposited in a bank, and a receipt therefor issued, stating that the bonds were deposited for safe-keeping and were to be returned upon return of the receipt, it was held that the receipt was not an agreement absolutely to pro

duce the bonds, or to pay their value upon return of the receipt, so as to render the bank liable as an insurer upon their loss through robbery of the bank. The court said that for the contract, as evidenced by the receipt, to have bound the bailee as an insurer of the bonds, it must have stipulated for the return of the bonds, or that the value thereof should be paid in the event they were not returned; and that for the bank to have become an insurer of the bonds, there must have been a consideration for the contract of insurance, and that such a consideration was not shown by proof that the depositor had been a regular customer and general depositor in the bank for many years, for which it received no pay, and that the interest coupons of the bonds had been clipped and deposited to his cash account.

And proceeding upon the theory

a

that there was no consideration mov- stances, of his own property, so that ing to the bank for receiving the bonds it was not liable for the bonds and as a special deposit for safe-keeping, stamps, they having been stolen along so that the bailment was gratuitous, with the bank's bonds, etc., when the the court in Thornton v. Athens Nat. bank was burglarized. Bank (Tex.) supra, declared that the And in Kubli v. First Nat. Bank. bailee "was liable only for gross negli- (1922) 193 Iowa, 833, 186 N, W. 421, gence in the manner of keeping" the the court, assuming that the defendbonds, or, in other words, "responsible ant bank held the plaintiff's Libonly for good faith and ordinary dili- erty bonds under circumstances creatgence; that is, such diligence as an ing a gratuitous bailment, applied ordinarily prudent man would exercise the rule that in such a case the in matters of his own business”-a defendant's liability for loss thereof matter for the consideration of the is dependent upon its failure to exerjury. And, applying this rule, it was cise that care which business men of held that a jury finding of an exer- prudence would exercise in keeping cise of reasonable care was sufficiently property of like value in like circumsupported by the evidence, it appear- stances, or the care that it would use ing that the bonds had been placed in the reasonable protection of its own in a burglar-proof safe-in a compart- property of like character, and held ment having steel walls 16 inches that the question of liability, the thick-the safest place in the bank bonds having been stolen when the and the place where the bank kept its bank's vault was burglarized, was one own money and bonds; that the rob- of fact for the jury, it appearing that berý took place at noon while but one the defendant held itself out as employee was in the bank; that when depository and solicited the deposit the cashier left the bank at noon he of Liberty bonds for safe-keeping, and screwed in the heavy screw door of that it kept the stolen bonds in a vault the safe, the door to the compartment having a comperatively flimsy brick where the bonds were; that the bank wall, while it kept its own money and conducted its business, as to opening bonds in a steel chest in the vault, and closing the bank and locking the which chest the burglars did not sucsafe at the noon hour and closing the ceed in opening. vault, in the usual and customary way A contrary conclusion on the facts that all other banks in that vicinity was reached in Harland v. Pe Ell State did; that the robbery was sudden, dar- Bank (Wash.) where it was held that ing, and unexpected; that a returning a bailee for hire of Liberty bonds and employee, and several customers who war saving stamps was liable for the came in, were, at the point of a gun, loss thereof through burglary, in that locked in the vault; and that the em- it had not exercised such due care as ployees of the bank had no opportu- a prudent man would take under siminity, short of sacrificing their lives, to lar circumstances of his own property, prevent the taking of the bonds. it appearing that at the close of busi

And in Harland v. Pe Ell State Bank ness, on the day of the robbery, the (1922, 122 Wash. 289, 210 Pac. 681, it cashier, who had the active personal was held that a bank, a gratuitous management of the bank, left the bailee, which kept Liberty bonds and banking room without locking or war saving stamps of a customer in fastening the outer door of the vault, a safe which was shown to be the and that the bonds and stamps were safest place in the bank, in the same obtained by merely blowing the inner compartment where it kept its own door of the vault and forcing the safebonds and securities other than cash, ty deposit boxes in which the bonds exercised reasonable care within the and stamps were kept. In reaching rule that it must exercise such due this conclusion the court overruled a care as a man of ordinary prudence contention that the fact that the burwould take, under similar circum- glars blew a stronger door than the

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