Burnell v. San Francisco Savings Union

HARRISON, J.

The plaintiff brought this action to recover from the defendant certain money alleged to have been received by it on deposit for the use of Margaret A. Given and assigned by her to him. Judgment was rendered in his favor, and the defendant has appealed.

The following facts appear from the record: On July 25, 1896, Mrs. Given was the owner of a piece of real estate in San Francisco, which was encumbered by a deed of trust to secure an obligation of hers to the defendant, amounting to about seven thousand dollars, and which she had sold to one .Mattheas. On that day the purchaser, together with Mr. Kilpatrick, who had negotiated the sale, went to the banking-house of the defendant for the purpose of having the encumbrance discharged and closing the transaction. The amount of the purchase price to be paid was ten thousand dollars, and the purchaser’s check for this amount was delivered to an officer of the defendant, Mr. T. B. Kent, who was at his desk behind the counter and in charge thereof, with directions that the balance of the check, after deducting the amount of the indebtedness to the defendant, should be held by defendant on deposit for Mrs. Given. Mr. Kent thereupon received the cheek and delivered to them a reconveyance of

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the land. The defendant, instead of retaining the money for Mrs. Given, on the same day issued to her husband itscertifi- . cate of deposit therefor, and three days thereafter paid the same to his order. Upon the evidence before it the court found that the check was delivered to the defendant, and that upon its delivery the defendant was instructed to hold, for the use and benefit of Mrs. Given, the balance.thereof, after applying so much as should be necessary for the payment of the indebtedness secured by the deed of trust; that the total amount of such indebtedness was $6,953.55; and that the balance, after paying that amount,—viz., $3,046.45,—“was then and there received by said defendant, San Francisco Savings Union, to and for the use and benefit of said Margaret A. Given.”

The defendant does not challenge the sufficiency of the evidence to sustain this finding, but it specifies as one of the particulars wherein it claims the evidence to be insufficient to justify the decision that it was not shown that Kent had any authority to receive moneys or deposits for the defendant, or to receive any directions or instructions as to the distribution or deposit of money, or to bind the defendant in regard to money or deposits. Without determining whether the above finding of the court can be reviewed under this specification, we are of the opinion that the evidence before the court-was sufficient to authorize it to hold that the relation of Kent to the defendant was such that the transaction with him was binding upon the defendant. It is true that Mr. White, the cashier and secretary of the defendant, testified that Mr. Kent had no power to bind the bank, and that the bank would not be bound by any instructions given to him, or by any promises that he might make; but this statement of the cashier was merely his opinion, rather than evidence of that fact. Whether Mr. Kent had power to bind the bank, or whether the bank would be bound by his acts, is to be determined by a consideration of his relation to the bank and the principles governing the same, and not by the mere opinion of a witness as to the legal effect of that relation. One wishing to deposit money in a savings bank, who delivers it at the counter of the bank to one of its officers who has apparent or ostensible authority to receive the same, is not required to ascertain whether the board of directors has. given such officer express authority to