Sagardia v. Bank , 51 Nev. 299 ( 1929 )

That the book of the depositor in this case was evidence against the bank as to its indebtedness to the depositor is well-settled law, but the book must appear to be regular on its face and the entries in the book must be made by the bank or its officials. If the book is altered in any manner and particularly by erasures, the book is of no value as evidence unless the erasures or the alterations are explained. Morse on Banks and Banking, vol. 1, sec. 295, and notes; McLennan v. Bank of California, 89 Cal. 575; Pauly v. Pauly, 107 Cal. 24; Blinn Lumber Co. v. McArthur, 150 Cal. 614; Culner v. Marks, 7 L.R.A. 489 and note page 495; Faxon v. Hollis, 13 Mass. 427; Jones on Evidence, sec. 569; Rev. Laws of Nevada, sec. 5418; State of Nevada v. Manhattan S.M. Co., 4 Nev. 326.

If the decision of the court in this matter is the law of the land in these classes of cases, then there is no evidentiary value to be placed upon a bank's books. When we find, as in this case, the depositor's book altered and erasures on it, the bank's books which are kept in the ordinary course of business showing the payment, and a judgment can be given upon an altered and erased depositor's book, it leaves the bank completely at the mercy of any person who would present an altered bank book and explain the alterations by saying, "I don't know anything about it." The conflict between the two books should certainly have been in favor of the books kept in the regular course of business, rather than the book upon whose very face suspicious circumstances appear to such an extent that it would require the clearest testimony to explain. Since the bank books, plus the evidence of the bank officers in extension thereof, were freely admitted, we fail to see what bearing authorities to the effect that the books were admissible can have upon this case. What we contend is that the payment alleged by appellant's answer was an affirmative defense which it had the burden of proving, and which its books alone were not sufficient to prove. We contend further that books of a bank which do not show how or to whom payment was made, and particularly do not show that payment was made to the depositor or his authorized agent, are not competent evidence of money paid to any particular person. We contend that the books of appellant fail absolutely to show that the sum in question was ever paid to plaintiff or his authorized agent, or to any other particular person. If they show payment at all, which we doubt, they merely show that fact only, and fail to show what is required of a bank to be shown when it sets up payment. The case of Goddard v. Citizens National Bank (Kan.), 224 P. 59, is exactly in point with the instant case. The complaint, answer, denials and evidence are similar to this case. We might rest our case upon that case alone. But we cite the following other authorities, mostly for the purpose of showing that the above-cited case is not only in line with the authorities to which it refers, but is in line with all of the authorities. 21 R.C.L. 119 (Payment, sec. 131), and note 11; in 17, 2d Decennial Digest (1907 to 1916), under the heading of "Payment," subtitle "Burden of Proof," Key No. 65 (6), are numerous comparatively late cases digested as follows: "Payment is an affirmative defense, and the burden of proving it is upon him who alleges it." See, also, Scott v. Austin, 152 P. 1178, 47 Utah, 248; Baldwin v. Porter,104 N.E. 492, 217 Mass. 15; Barrett-Hicks Company v. Glas, 111 P. 760,14 Cal. App. 289; Essex etc. v. Danforth, 88 A. 561, 111 Me. 212; 39 Century Digest, "Payment," secs. 196, 197, 199. There are so many cases cited that we have selected only one from each heading. Payment must be established by preponderance of evidence. 21 R.C.L. 120, sec. 132, and cases cited in n. 15; see notes 42 A.S.R. 317; 55 A.S.R. 960; Shulman v. Brantly, 50 Ala. 81; Perot v. Cooper, 28 P. 391, 31 A.S.R. 258; Ford v. Lawrence, 51 S.W. 1023. While there do not seem to be any Nevada cases absolutely in point, we believe that the following cases indicate the same ruling in this State. Isola v. Sorani, 47 Nev. 365 (see especially p. 368); Devencenzi v. Cassinelli, 28 Nev. 232, 273, 81 P. 441, 449; Roberts etc. v. McKim, 34 Nev. 191.

The same rule applies to banks. 7 C.J. 876, sec. 943, "Evidence," and n. 89; Rimkus v. Tananecivz, 207 Ill. App. 96; Noah v. Bank, 122 N.E. 235; Goddard v. Bank (Kan.), 224 P. 59.

Bank must show not only that payment was made, but that it was made either to the depositor or some one authorized by him, the burden being on the bank to prove each of these elements. 7 C.J. 672, and cases cited in notes 63 and 64; 7 C.J. 675, sec. 393, and cases cited in note 11; 7 C.J. 756, sec. 568, note 44; 7 C.J. 868, sec. 916, and cases cited in note 6.

These facts must be proved by evidence in addition to a mere credit entry upon the books of the bank. Boyd v. Wilson, Federal Case No. 1751, 2 Cranch 525; Clark v. Wells, 71 Mass. 69; Schwartz v. Allen, 7 N.Y.S. 5.

The pass book was admissible in evidence, and even if it had not been no harm was done to appellant. The only facts that the pass book could prove were the rules of the bank and the deposits made by respondent. The pass book contained a complete set of rules, which, under the law, constitute the contract between appellant and respondent. 6 C.J. 864, note 53, etc.; 1 Ann. Cas. 98; 14 Ann. Cas. 479.

OPINION The plaintiff, John Sagardia, sued the Stockgrowers' Ranchers' Bank of Reno, herein called Stockgrowers' Bank, and made the Scheeline Banking Trust Company a party. The action was brought on March 8, 1927, for an alleged balance of savings account with the Stockgrowers' Bank, amounting to $4,428.51. The Scheeline Banking Trust Company was made a party defendant, presumably upon the allegation contained in plaintiff's complaint to the effect that on December 31, 1923, the said bank purchased all the assets of the Stockgrowers' Bank and assumed all the liabilities of the seller to its depositors. The case comes before us upon appeal from the judgment in favor of the plaintiff and against the Stockgrowers' Bank for the sum of $5,398.23, and from an order denying and overruling its motion for new trial. The Scheeline Banking Trust Company being out of the case on appeal, the parties herein will be designated as in the trial court.

The complaint alleges, and the answer of the defendant admits, the allegation contained in the complaint that at various and divers times between about the 21st day of December, 1917, and June 6, 1919, plaintiff deposited with said defendant, Stockgrowers' Ranchers' Bank of Reno, various and divers sums of money, which said last-named defendant received from plaintiff, and, in accordance with its rules and regulations, agreed to keep for plaintiff, subject to his right to withdraw the same, and to pay him interest on all such sums at the rate of 4 per cent per annum compounded semiannually upon the first days of January and July of each year.

The complaint alleges generally, and the answer of the defendant admits, that at the time said deposits were made, they were made in accordance with the rules, conditions, and regulations published and printed in a depositor's pass book issued to each depositor and made a part of the contract between the plaintiff and the defendant.

The complaint alleges, and the answer of the defendant admits, rule 13 of said rules and regulations inserted in the complaint in respect to interest.

The complaint alleges, and the answer of the defendant admits, that rule 5 of said rules reads, in part, as follows: "When an account is closed the bank book shall be returned to the bank."

The answer of the defendant alleges: "That on the 23d day of August, 1922, one John Sagardia had on deposit in the savings department of the defendant, Stockgrowers' and Ranchers' Bank of Reno, the sum of $4,428.51. That on the said 23d day of August, 1922, the said sum of $4,428.51 was paid to the depositor and the said account was closed upon the books of the defendant."

The plaintiff filed a reply to the defendant's answer and denied the averment of payment and reiterated his prayer for judgment.

Upon the issues thus framed, the action was tried to the court without a jury. Findings of fact and conclusions of law were entered in accordance with the court's decision. All the allegations of the complaint were found to be true and that the sums deposited by plaintiff with defendant, together with interest thereon, aggregated the sum of $4,428.51 on June 30, 1922, and that said deposits with interest to July 1, 1927, amounted to $5,398.23. In accordance with its findings of fact and conclusions of law, judgment was rendered against the defendant for the amount stated.

Counsel for the plaintiff takes the position on appeal that, upon the issues as framed by the pleadings, the controversy between the parties is as to whether the defendant on the 23d day of August, 1922, or upon any other date, paid to plaintiff said balance of savings account, amounting to $4,428.51, or any part thereof. Counsel for the defendant takes the position that the immediate question presented by the appeal is whether, upon the record before us, the plaintiff is entitled to recover.

Error is assigned to the trial court admitting in evidence plaintiff's "pass book" over the defendant's objections. The greater part of the brief of counsel for the defendant is confined to the discussion of the alleged error. The ground of objection to the admission of the pass book was that it was not in the same condition it was in when issued by the defendant to the plaintiff, in that there appears an erasure on the line immediately following the last entry made in the book on June 30, 1922, showing said balance of $4,428.51. The book is made a part of the record and was brought here for our own examination and inspection to determine whether the erasure destroyed the book as evidence. Counsel argues with considerable force that the admission of such a book as evidence would open a door to frauds and perjuries and place books, evidently fair, on the same footing with those fabricated for a particular purpose, and that to allow such a book to be admitted in evidence would subject this sort of evidence to the danger of great abuse, and tempt dishonest men to commit fraud by altering books, so as to adapt them to circumstances. It is further argued that if the book in question, in its erased condition, be considered as proof of its contents, it would leave banks completely at the mercy of any person who would present an altered pass book and explain the alteration by saying, "I didn't know anything about it." We appreciate the argument, but under the particular facts and circumstances of this case, the argument is not persuasive.

1-3. A book materially erased and altered cannot go to the jury unless the party offering it explains the erasures or alterations. Otherwise, however, of immaterial alterations. Abbott's Proof of Facts (3d ed.) 84. It is our understanding that the erasure had to be explained to the reasonable satisfaction of the judge before the book could be admitted in evidence. The Modern Law of Evidence, Chamberlayne, vol. 4, sec. 3103. The record discloses that when the book in question was offered, it was exhibited to the court below and was considered admissible in evidence if the erasure appearing thereon was explained. The findings of fact of the trial court are silent as to the explanation given of the erasure, and we must infer that the court determined that the book was not only competent to be admitted in evidence and, sitting as a jury, it passed on the credit to be given the book in its erased condition. The court was the proper judge of its weight, as all other evidence laid before it. We find no error in the court's ruling.

It is contended on the part of the defendant that the evidence is insufficient to support or maintain the judgment.

The facts are simple and undisputed. The evidence is clear and points to but the single conclusion that the balance of plaintiff's account on deposit with the defendant bank was not paid as alleged in its answer, or at all, and that the plaintiff was entitled to recover as adjudged by the trial court.

The judgment and the order appealed from are affirmed.