Tribulas v. Continental Equitable Title & Trust Co. ( 1937 )

I agree that a new trial should be granted in this case but in that trial plaintiff's right of recovery should not be limited by binding instructions to the item of $1,000 on the check for which W. J. Fitzpatrick's name appears as a witness. Whether or not plaintiff is entitled to recover all the sums which she declares were paid out on forged endorsements is entirely a question of fact and is therefore for the jury.

The majority opinion says: "When this suit was begun, the first account stated had gone unchallenged for more than 14 years, the second for almost 13 years and the third for more than 12 years. We need not, for the purposes of this case, speculate on what would be a reasonable time for the challenge of such accounts stated; as the period of limitations fixed by statute is only six years, the jury should have been instructed that on the admitted facts plaintiff by her silence during the periods specified had estopped herself from recovering for any items charged to her account prior to the last balancing of the book January, 1924: see Morgan v. Lehigh Valley Coal Co.,215 Pa. 443, 447, 64 A. 633."

I found nothing in this entire record which would warrant the holding that there was any "account stated" between this depositor and the bank. An "account stated" is "an agreed balance of accounts. An account which has been examined and accepted by the parties: 2 Atk. 251," Bouvier's Law Dictionary. There is nothing in this case showing that there ever was an "account stated" between the parties. No "account stated" was mentioned in the pleadings; no "account stated" was mentioned by Judge LAMBERTON in his charge to the jury; and no "account stated" was referred to by Judge ALESSANDRONI in his opinion supporting the entry of judgment for defendant n. o. v. I will go further and state that if the issue in this case had been the existence of an "account stated," which decidedly it wasnot, that issue, if prima facie supported by proof, would havehad to go to the jury. Furthermore, if an account stated had been properly raised by the pleadings, the bank would have failed on this record to make out a prima facie case showing an "account stated." What an "account stated" as between a bank and its depositor is, has been frequently clearly defined by this court and the Superior Court of this State. In Thompson v.Republic Trust Co., 84 Pa. Super. 183, 189, that court said: "A bank book settled, balance struck and checks returnedto the depositor, will become an account stated if not promptly examined and errors of amount pointed out for correction:United Security Life Ins. Trust Co. of Pennsylvania v.Central National Bank of Philadelphia, 185 Pa. 586, 601 [40 A. 97]. This is in harmony with the rule as declared in 3 R. C. L. section 161, p. 532, as follows: 'It may be stated generally that the entry of the debits and credits in a depositor's passbook by a banking institution striking a balance and then delivering the book to the depositor with his cancelled checks, constitutes a rendition of account so that the retention of the book so balanced by the customer for an unreasonable time without objection to the account as rendered will constitute an account stated.' " [Italics supplied.]

It will be observed that it is an essential of an account stated between a bank and its depositor that the checks shall be returned to the depositor. There is no evidence in this record that any checks were returned to the depositor. Every check put in evidence in this case was put in by the bank. Every check is marked as a defendant's exhibit. The first reference to a disputed check is on page 22a of the record where the bank's attorney in cross-examining Mrs. Tribulas, said: "I show you a check dated February 14, 1922, for $4,000. This check was drawn to the order of Martha Tribulas." Her reply was: "I never marked it. I don't know nothing about it." She was then asked: "And it has your name on the back. Did you make the cross-mark on the back?" She replied: "No, I can swear to God I never made those marks, I can drop dead on the floor. I never saw it." As to the other checks, she testified: "I never saw those checks."

The majority opinion contains the following statement: "It has been held in this state that after a passbook has been settled with entries of deposits and credits and delivered to the depositor, he is bound personally or by authorized agent, with due diligence, to examine the account and without unreasonable delay to advise the bank of any error in it. If he fails to do that, the balanced passbook becomes an account stated." This record is barren of any evidence that the depositor's passbook was delivered to her, after entries of deposits and credits or at any other time. Besides, the returnof the cancelled checks to the depositor is an indispensableelement in the account stated, and this was not done here. Mrs. Tribulas denied that she had the book in her possession from the time she opened the account until she drew out the balance in 1931. "He had it in the safe," she said. The passbook shows February 21, 1921, was the date of the last deposit: $1,220. The bank says this was an error, that the ledger sheet shows February 21, 1926, was the date of the last deposit. This discrepancy emphasizes the fact that this was preëminently a case for the jury. Whether she made the deposits personally or sent her then friendly husband with them, nowhere appears.

The balancing may have been done on the bank ledger sheets from time to time after the large withdrawals on the questioned checks, for the purpose of computing interest on the balances; what appears in the bank book by way of balancing may have been copied in there long afterwards. A former clerk of the defendant bank testified that the entries on the ledger sheet were made at the time the various transactions in the account took place, but no one testified that the entries in thepassbook were contemporaneously made. It is not unusual for entries in a passbook to be made after the fact, as ofttimes a bank depositor does not take his book to the bank with him even when he is making a deposit. This same witness (Cassidy) testified that he had no knowledge as to the withdrawals in this account (except the last one, the closing check, which is not in controversy) other than the information he had gotten "from the records of the bank."

Even if an "account stated" between these parties had been pleaded and proved (and this, I repeat, was not done), the effect would be a question for the jury under proper instructions, but it is not a matter of binding instructions. In F. M. Bank, to use v. Bank, 165 Pa. 500, 505, 30 A. 1008, this court said: "The defendant was entitled to go to the jury on the question of the authority of the assistant cashier and the subsequent ratification of his acts, and of the bindingeffect of a settlement made and acquiesced in for a length oftime," (italics supplied). In Thompson v. Republic Trust Co., supra, 84 Pa. Super. 183, 190, that court reaffirmed the principle of "the right of a defendant to go to the jury upon the question of the effect of a settlement made and acquiesced in for a long period of time." If a defendant has the right, it follows that a plaintiff has the same right.

In Dana v. National Bank of the Republic, 132 Mass. 156, the Supreme Judicial Court of that state held that in an action by a depositor against a bank to recover the amount of a check (alleged to have been fraudulently altered), the defendant was not entitled to a ruling, as a matter of law, that if the plaintiff did not, after a reasonable opportunity to examine the checks returned, object to the payment of the check in question, he would be presumed to have ratified it; but that the question of ratification was for the jury.

In Shipman v. Bank of State, 126 N.Y. 318, 27 N.E. 371, it was held that an account stated can always be opened upon proof of mistake or fraud. In Los Angeles Inv. Co. v. Home Sav. Bank,180 Cal. 601, 182 P. 293, it was held that though there was an account stated between a bank and its depositor by the rendition of semimonthly statements, such account stated could be opened by the depositor for fraud or mistake, as mistake by the depositor in drawing checks on the requisition of the manager of its insurance department to fictitious payees whose indorsements were forged by the manager and the checks cashed with the bank. In Rettig v. Southern Illinois Nat. Bank, 147 Ill. App.? 193, it was held that the failure of a depositor to examine his passbook within a reasonable time does not conclusively estop him from showing the incorrectness of the balance. In Re Ruskay (C.C.A.), 5 F.2d 143, 147, it is stated: "Mistakes in bank accounts are not uncommon. They preclude no one from ascertaining the truth and claiming its benefit." In Mechanics Bank of the City and County ofPhiladelphia v. Earp, 4 Rawle 384, it was held that the settlements of the depositor's bank book did not alter the rights of either party.

In Leather Mfgrs. Bk. v. Morgan, 117 U.S. 96, in which the action was between a bank and a depositor, and the trial court gave binding instructions to the jury, the Supreme Court of the United States reversed the trial court and held that the question whether the depositor exercised in regard to such examination (i. e., of his passbook and cancelled checks) the degree of care required of him in the circumstances disclosed by the evidence, including the relations of the parties and the established usages of business, and the question whether the endorsement of a particular check was, under the evidence, an endorsement in blank or one for deposit to the credit of the depositor, were for the jury, under proper instructions as to the law.

In the case appearing at the end of the above quoted excerpt from the majority opinion, that is, the Lehigh Valley CoalCompany Case, the facts were found by a referee and in that case this court said: "As to whether the monthly statements were accounts stated, and therefore within the statute of limitations from the date when rendered, must be determined by the facts in this case." It follows that if that case had been tried by a jury, the question whether or not the monthly statements were accounts stated, would have been a jury question, as it depended on the facts.

In Frankini v. Bank of America Nat. Trust Savings Assn. (Cal.), 55 P.2d 232, it was held that whether depositor suing bank for amount paid by bank in cashing forged checks from depositor's account was contributorily negligent merely because he left blank checks, green ink, and protectograph on desk in private office in his home, or whether he exercised due care in promptly examining his passbook, paid checks, or statement of account, or whether he notified bank of error within agreed ten days after expiration of time covered by statement, were all questions for the jury. In FletcherAmerican Nat. Bank v. Crescent Paper Co. (Ind.), 139 N.E. 664, it was held that in an action to recover money paid on paper forged by employee, it was a question for the jury to determine whether due diligence was used in examining returned checks and accounts. The same ruling in a similar state of facts was made in Deer Island Fish Oyster Co. v.First Nat. Bank (Miss.), 146 So. 116. In McCornack v. CentralState Bank (Iowa), 211 N.W. 542, it was held that whether depositor was negligent to bank's prejudice in not sooner discovering fraud of forger procuring from him checks payable to fictitious person, was a question for the jury. In Ponsellv. Citizens' Southern Bank (Ga.App.), 133 S.E. 351, it was held that whether facts pleaded and proved in exculpation of failure to notify bank that checks paid on plaintiff's account were forgeries were such as to excuse depositor, was a question for the jury.

The pleadings in this case were "clear cut" and were set forth by the trial judge, who, as we have already noted, did not say anything about an "account stated," for the pleadings did not. Plaintiff in her statement pleaded the deposits amounting to $12,000, her demand for the same and averred that "all moneys paid out of the said savings account (except $466.27) were improperly paid out, improperly charged against the savings account of said Martha Tribulas and that the money so withdrawn was not paid to Martha Tribulas or to anyone authorized to act for her or in her behalf." Defendant averred that "the sums in said savings account were withdrawn by plaintiff upon her checks, withdrawal slips or notices properly executed by the plaintiff and duly witnessed in accordance with the instructions of plaintiff on file with defendant." Defendant also averred that plaintiff "knew the withdrawals made in said account" (which, of course, she did if the withdrawals had been made upon her checks properly executed). Defendant also averred that on June 24, 1931, plaintiff "accepted the sum of $466.27 as payment in full of the balance in said account." Nowhere in the pleadings is any mention made of an account stated.

It is fundamental, of course, that "if plaintiff's action is based on an account stated, it must be pleaded": 1 C. J., Secundum, p. 742, sec. 63. It follows that if the defense to an action for debt is an "account stated," it must be pleaded. "Every pleading shall contain and contain only, a statement in a concise and summary form of the material facts on which the party pleading relies for his claim, or defense, as the case may be, but not . . . inferences or conclusions of law": Section 5 of the Practice Act of 1915, P. L. 483.

The entry of judgment for defendant n. o. v. in this case was due to a misconception of where the burden of proof lay. This action was nothing more than a simple action of assumpsit by a creditor against a debtor. The fact that the debtor was abank did not change the legal aspects of the action. That the relation between a bank and its depositors is that of debtor and creditor is "firmly settled": Gartner v. Cassatt et al.,313 Pa. 491, 169 A. 889. "The right of a depositor is a mere chose in action": Zollmann on Banks Banking, Vol. 5, p. 144, sec. 3153. See also N.Y. County Nat. Bk. v. Massey,192 U.S. 138.

The court below fell into error in placing the burden of proof, by not distinguishing this case from Bulakowski v.Philadelphia Saving Fund Society, 270 Pa. 538, 113 A. 553. In that case there was a rule printed in the depositor's passbook, reading as follows: " 'If any person shall present a deposit book at the office of the society pretending to be the depositor named therein, and shall thereby obtain the amount deposited, or any part thereof, and the actual depositor shall not have given previous notice at the office of the loss or theft of the book, the society will not be responsible for the wrongful payment, nor be liable to make good the same; provided that it has been entered in the book when made.' " In theBulakowski Case the payment was made to a person who presented a passbook to the bank, and before the depositor had notified the bank of the book's loss. It further appeared that the person who presented the book correctly answered the questions suggested by the identifying data on the signature card. It was held that "this evidence would relieve defendant from liability, and entitle it to binding direction unless plaintiff proved it [i. e., the bank] had not used due care in identifying the person presenting the book and receiving the money." This court there held that under such circumstances the burden was upon the plaintiff to establish negligence and that it had failed to do so.

The Bulakowski Case is utterly inapposite here because herethe passbook contained no such or similar rule. Mrs. Tribulas did not by accepting the passbook authorize the bank to pay moneys out of her account to any person presenting it. There are many "passbook cases" but this is not one of them. In the instant case, J. B. Cassidy, who identified himself as having been "with the Continental Equitable Title and Trust Company from about 1918 until 1932" testified that "everyone [of the 7,000 depositors] was given a book similar to this [referring to plaintiff's passbook]" and "without any notice of savings fund rules and regulations" such as "these books usually do" (italics supplied).

This not being a typical "passbook case," the question comes down to this: Plaintiff's deposits with the bank having been proved and the plaintiff having denied that she had received a return of these deposits, on which party lies the burden ofproof? All the authoritative cases hold that in such a case the burden lay on the defendant exactly as in any other case where a creditor sues a debtor and the debt is proved and payment is pleaded.

The Court of Appeals of New York clearly stated the correct rule in cases of this character in its opinion in Noah v.Bowery Sav. Bank, 225 N.Y. 284, 122 N.E. 235, where it adjudged the lower court to be in error in charging the jury that a depositor has the burden of proof. That court said: "The action was for money which the defendant owed to the plaintiff. The debt was admitted. The defense was payment to a third party under such circumstances of care and diligence as to relieve the bank from liability. The burden, therefore, was upon the bank to prove this defense, and that it exercised due care and diligence in making payment. . . . Payment in a case like this is an affirmative defense to be proved by the party alleging it." In Leff v. Security Bank of New York, 93 Misc Rep. 139, 157 N.Y. S. 92, the Appellate Term of the Supreme Court held: ". . . The burden of establishing the defense of payment authorized by the depositor is upon the bank, as well as the burden of establishing the defense of estoppel by reason of the alleged contributing negligence of the depositor by which the bank has been misled. The only burden resting upon the plaintiff is proof of the deposit and of the balance remaining due after deducting payments admittedly authorized by plaintiff."

The court below in entering judgment for the defendant n. o. v. quoted the following from the opinion of this court in theBulakowski Case, supra: "The depositor has the burden of proving negligence on the part of the bank (Israel v. BowerySavings Bank, 9 Daly, N.Y. 507), and here the burden of proof rested on plaintiff to prove the bank had not exercised the care necessary under the circumstances." The Bowery SavingsBank Case referred to was a case tried in the Court of Common Pleas of New York City in 1882. The report shows that among the rules and regulations printed in the bank book was that "no person shall have the right to demand any part of his principal or interest without producing the original book. All payments made to persons producing the deposit book shall be deemed good and valid payments to depositors respectively." That court held: "The rules printed in the book are, when properly made known to the depositor, a part of the contract between him and the institution." In the instant case there were (as already noted) no rules in the passbook or elsewhere, assented to by the depositor and affecting the latter's rights to put the bank to the proof of payment.

The rule stated by the New York Court of Appeals (above quoted) is apparently the rule in practically all other jurisdictions. See Fourth Central Trust Co. v. Rowe (1930), 122 Ohio State 1, 170 N.E. 439; Harmon v. Old Detroit Nat. Bk.,153 Mich. 73, 116 N.W. 617; Zuplkoff v. Charleston Nat. Bank (W.Va.), 88 S.E. 116; and Yarborough v. Banking, Loan TrustCo., 142 N.C. 377, 55 S.E. 296.

In Barmby v. Merrimack Co-op. Bank, 285 Mass. 27,188 N.E. 378, the Supreme Judicial Court of Massachusetts held: "It is well settled that a bank on which a check is drawn must ascertain at its peril the identity of the signature of its depositors and that payment of a forged check cannot be charged against a depositor if he is free from any negligence which contributed to the fraud practiced upon the bank."

In Berndt v. Hoboken Bank for Savings in City of Hoboken,103 N.J.L. 478, 135 A. 818, the Court of Errors and Appeals of New Jersey held: "The plaintiff had denied that the $900 in dispute had ever been received by her or paid out on her order, or by any one who had power or authority to withdraw it, and denied also that the signature on the receipt in dispute was her signature. The burden of proof, under the circumstances in this case, was on the bank to exonerate itself from want of due care if it failed to turn over to the depositor the moneys to which such depositor would ordinarily be entitled. It is a well-settled principle of law that payment in a case under like circumstances is an affirmative defense."

In Patterson v. Marine Nat. Bk., 130 Pa. 419, 18 A. 632, it was held that where money is deposited in a bank by plaintiff as "agent" and there is nothing on the face of the deposit to show for whom he is agent, and the bank refused to pay plaintiff's checks, and pays the money over to a third party, it does so at its peril; and in a suit by the plaintiff the burden of proof is on the bank to show that the money did not belong to plaintiff, but did belong to the party to whom it paid it. For another example of the burden of proof resting on the bank, see Arnold et al. v.The Macungie Savings Bank, 71 Pa. 287.

Zollmann on Banks and Banking lays down these principles, Vol. 2, page 367, section 1231: "A savings bank which does not exercise reasonable care and diligence in paying a deposit to an impostor is liable to the depositor for the consequences of its mistake. [Citing Wegner v. Second Ward Sav. Bank, 44 N.W. 1096, 76 Wis. 242, 249.] Payment of the deposit is an affirmative defense as to which the bank has the burden of proof. . . ." Vol. 5, page 285, section 3295: "While ordinary care does not require a bank which accepts a deposit from an illiterate customer to close all avenues of fraud, the care which it owes to such a depositor certainly is not any less than that which it owes to a depositor who can read and write and thus is better able to protect himself. The bank therefore, while it is protected where it pays out such an account to a forger with due care, has the burden of justifying its payment. . . . Extra precautions should be taken as to depositors who sign by mark. [Citing Wronski v. Frankford Trust Co., 84 Pa. Super. 511, where the question of the bank's care was submitted to the jury.] . . . The name, however, is only one means of determining ownership. A custom to require such a customer to answer test questions which are entered on the signature card is certainly a reasonable one. . . . It will be also very advantageous for the bank to enter some information of the depositor's physical appearance on the signature card. It might be added that in these modern days the bank might well require an illiterate depositor for his own protection to leave his fingerprint for identification."

The cases cited in the majority opinion do not warrant its decision. One of these cases is Greenhalgh Co. v. Farmers Nat. Bk., 226 Pa. 184, 75 A. 260. In that case this court distinctly said: "Whether a bank is or is not estopped from denying its liability for a balance stated by reason of fraud or error depends upon the facts, which are for the jury." Another case cited by the majority opinion is United SecurityCo. v. Bank, 185 Pa. 586, 601, 40 A. 97. The decision in that case made "checks returned to the depositor" an essential part of an "account stated." As we have already pointed out, there is no proof here that the checks were returned to the depositor. The proof is the other way, as it was the defendant bank which produced the checks at the trial. In the case ofThompson v. Republic Trust Co., 84 Pa. Super. 183, andLeather Mfgrs. Bank v. Morgan, 117 U.S. 96, cited in the majority opinion, it was held, as we have heretofore pointed out, that the question raised was for the jury. Sergeant'sExrs. v. Ewing, 30 Pa. 75, cited in the majority opinion, holds only (quoting from syllabus) that "an account rendered to a party indebted, by his creditor, and not objected to in a reasonable time, is prima facie evidence against the party to whom rendered." In Penn Bank's Estate, Walter's Appeal,152 Pa. 65, 25 A. 310, cited in the majority opinion, an auditor found that it was not clear as a matter of fact that there had been any mistake in the account rendered the depositor by the bank. This court held that this finding by the auditor "unless shown to be plain error must be regarded as conclusive." Findings of fact by an auditor have, of course, the same legal effect as findings of fact by a jury.

This case was preeminently a case for a jury. The deposits were admitted, and the depositor claimed that the withdrawals were made on forged crosses (Xs). The bank pleaded that the checks had been "properly executed by the plaintiff" or, in other words, that the crosses had been made by her. This was as definite an issue of fact as it would have been had she been able to write her name and had claimed that her signature had been forged. The possession of the passbook had nothing to do with the withdrawals, as no rule of the bank required the production of the book when withdrawals were made. She claimed that her husband had locked the passbook in his safe since 1924. Whether or not she had the passbook in her possession when the withdrawals were made is wholly immaterial. If the bank paid out her money on a forged cross (X) as her "signature," it is liable. Cassidy, the former bank clerk, was asked if he had "any knowledge as to the withdrawals in this account, other than the information which you have gotten from the records of the bank" and he replied: "That is all, except the last one." As to the last one he said that he "made that closing check to close the account." He testified to her making her mark on that undisputed closing check. No one except Mrs. Tribulas' husband testified to her making her mark on the other checks and he is not only a hostile witness, he and his wife being estranged, but he is an interested witness, for it is undisputed that the proceeds of every disputed and allegedly forged check were paid into his account in the same bank. J. J. O'Donnell, who had been paying teller in the defendant bank at the time of the transactions in question, testified that "there was no actual cash paid on these [disputed] check. They were issued at the savings fund window and immediately deposited with the receiving teller." All the checks put in evidence by defendant bank, show that the husband, Baltram Tribulas, had the proceeds of the checks credited to his account. All this tends to confirm Mrs. Tribulas' view of this case, to wit, that her husband forged her cross on the checks and appropriated the proceeds.

That this woman would make deposits from time to time before and during 1921 of sums ranging from $300 to $2,952.50 and that the withdrawals made after 1920 were of large sums of, respectively, $5,000, $1,000, $4,000, $500 and $1,000 and all for the benefit of Baltram Tribulas who claims to have witnessed his wife's "mark," lends support to this woman's claim that her husband "gypped" her and that the carelessness of the bank officials and clerks made it easy for him to do so. The passbook shows that the date of the last deposit was February 21, 1921, in the amount of $1,220; the ledger sheet of the bank shows that the last deposit of $1,220 was made on February 21, 1926. This shows a discrepancy between the bank's ledger sheet and the entries made in plaintiff's passbook, and indicates that there was at least some carelessness on the part of the bank.

I cannot agree with counsel for the bank that "the facts in the case at bar show that the plaintiff instructed the bank to pay money out of her account on orders bearing a cross mark witnessed by her husband. . . ." To uphold the position advanced by counsel we would have to read into the "signature card" something which neither the parties themselves nor the law put into it. The bank did not in practice so construe the "signature card," for on May 17, 1927, it paid out one thousand dollars on an order purporting to bear Mrs. Tribulas' "mark" (X) and witnessed not by her husband but by "W. J. Fitzpatrick, Asst. Treasurer." The bank cannot now by its counsel convincingly plead for a judicial construction of the "signature card" which would logically force the conclusion that the bank in at least one instance breached its contract with the depositor and, according to her testimony, caused her a loss of one thousand dollars.

Appellee also says: "It is inconceivable what other precautions could have been taken by the bank. Most certainly the bank established that every reasonable precaution was taken. The burden was then on the plaintiff to prove negligence on the part of the bank. This she failed to do and consequently the court below properly entered judgment n. o. v.:Bulakowski v. Phila. Saving Fund Society, 270 Pa. 538 [113 A. 553], (1921)."

It is obvious that the bank could have taken many other precautions to protect both itself and its depositor It could have provided in the passbook (as apparently ithas since 1928) that it should be presented when withdrawals were to be made and that such presentation, unless the bank had been given timely notice of its loss or theft, should be prima facie proof that the order for withdrawal was authoritative. It could have tested the withdrawer's identity by asking questions based on data available on the "signature card." There is no evidence that the bank did this. It could have taken many other customary precautions against the possibility of being imposed on. The bank did not call any witness who remembered plaintiff being present when these withdrawals were made. The bank's inability to do this is understandable but it is not so easy to understand why the bank did not require some of its numerous officers or clerks who, it is testified, "well knew" this illiterate depositor, to make a notation in the bank's records that she was identified and by whom, when the withdrawals were made. With such a record to "refresh recollection," convincing proof of the making of payments on plaintiff's order could have been offered, if such was the fact.

The majority opinion quotes Cassidy, the former bank clerk, as follows: "The passbook had to be there with the withdrawal." I regard this testimony as unimportant on the issue raised in this case, for these reasons: (1) The witness was obviously basing his statement on what he thought was the customary practice of the bank, for he admitted on cross-examination that he had no "knowledge of the withdrawals in this account other than the information gotten from the records of the bank," except as to the "closing check." Another witness for the bank, who had been its paying teller, was asked whether or not "your bank relaxed many of its rules with respect to both of them [Mr. and Mrs. Tribulas]." He replied, "No, I would not say that they did, with possibly a couple of exceptions" (italics supplied). This witness also admitted that "if Mr. Tribulas would come with a check for Mrs. Tribulas, the bank would cash it." He added: "He was on record as being all right to cash for her." The fact is that this record is barren of any evidence of any authority ever being given by Mrs. Tribulas to her husband to cash checks for her. It was apparently thisassumption on the part of the bank which caused the loss this depositor complains of.

(2) The possession of this particular passbook did not givethe possessor the right to make withdrawals from the account.This is one of the most important facts in this case. Most banks do have a rule printed in the passbook providing that presentation of the passbook shall be prima facie evidence of the right of the presenter to withdraw funds. For example, inBulakowski v. Phila. Saving Fund Society, supra, and quoted in the majority opinion, there was a rule in the passbook providing in effect that a person by presenting the passbook might give himself the status of the depositor. This court in that case said: "Possession of the bank book is, under thedeposit contract [italics supplied], prima facie evidence of the right to draw on the fund it represents" and that "these rules are printed in the deposit or passbook; by accepting the book the depositor assents to the regulations and they become a part of the contract of deposit binding on both [bank and depositor] alike," citing Burrill v. Dollar Savings Bank,92 Pa. 134. If in the instant case there had been such a rule inthe passbook and plaintiff's husband or some one else had procured possession of the book and presented it at the bank and thereby had enabled himself to withdraw funds from the depositor's account, the bank would be relieved from liability,but under the facts of the present case, with no such rule inthe passbook, the debtor bank paid out this creditor's money at its peril. It was under the duty of seeing to it that it paid the money to exactly the right person, to wit, the depositor. If A promises to pay B $1,000 and gives a note to B as evidence of the indebtedness, and someone steals or finds the note, A cannot discharge his obligation to B by paying that "someone," unless by their contract it is stipulated that possession of the note will be prima facie proof of the right to collect it. In the instant case, A is the defendant bank, B is Mrs. Tribulas, the depositor, and the "someone" to whom the money was unquestionably paid was her husband. This payment to the husband did not discharge the obligation unless Mrs. Tribulas was present and authorized the payment by actually making the mark that the bank alleges is hers. That is the fact in issue, and the question was for the jury.

The conduct of Mrs. Tribulas when in 1931 she found her balance to be only $466.27 was before the jury merely as evidence. She claimed she "cried and fought" when she made the discovery that most of her money was gone, until she was told to "get out." Witness Cassidy was asked: "Did she raise [in 1931] any question about any additional money being due her from her account?" and he answered, "Not to my knowledge. Q. Did she leave the bank perfectly satisfied?" In reply to this he stated his conclusion: "Yes, sir." That was all for the jury.

Mrs. Tribulas' delay in bringing this suit was within her statutory rights and its legal significance, if any, was for the jury. This illiterate woman may not have brought this action sooner because of ignorance of her rights. She may have believed that her only recourse was against her husband. The law gives any creditor six years' time in which to bring an action against his or her debtor.

The trial court imposed too heavy a burden on the plaintiff (Mrs. Tribulas) by requiring her to prove that the bank failed to show ordinary care in paying these checks which she claimed were forged. This would be correct if the passbook contained a rule or contract that possession of the book gave the bank the right prima facie to pay him who presented the book, but in the absence of such a rule, it is not correct. In such a case the burden was on the debtor bank to prove it paid its indebtedness to its creditor depositor, as is shown by the authorities cited in this opinion.

However, the jury found that the plaintiff had sustained even the unwarranted burden of proof the trial judge placed on her, and found a verdict in her favor. The court in bancerroneously, in my judgment, applied the rule laid down in theBulakowski Case, supra, which, unlike this case, was a typicalpassbook case, and held that plaintiff had not sustained the burden of proof imposed upon her and accordingly entered judgment for defendant n. o. v. In this case the burden ofproving payment was on the bank after plaintiff proved herdeposits (which were not disputed), and this burden the defendant wholly failed to meet.

I would hold that the judgment of the court below should be set aside and judgment entered for the plaintiff on the verdict, were it not for the fact that I do not think that the trial court sufficiently clarified the issues or reviewed the evidence or correctly defined the burden of proof. The last named subject was not referred to except when the court was asked to charge on "point number four." What the court there said about the burden of proving the bank's "failure to exercise ordinary care" being on the plaintiff, was erroneous, and while it was prejudicial to the plaintiff and not to the defendant, a jury which is confused as to where the burden of proof lies is quite likely to be confused as to the issue generally. We said recently in Sears v. Birbeck, 321 Pa. 375,383, 184 A. 6: "It is a primary duty of the trial judge — a duty that must never be ignored — in charging a jury to clarify the issues so that the jury may comprehend the questions they are to decide. Such clarification is impossible without clear instruction as to the burden of proof, the shifting of the burden in certain states of the record, and if plaintiff has offered prima facie proof of what he has pleaded, the duty then devolving on the defendant to come forward with evidence. See Henes v. McGovern, 317 Pa. 302,176 A. 503." We also said in the same case in substance that it is the duty of the trial judge to review adequately the opposing evidence in a case and that "a trial judge's charges which are inadequate or not clear, or which tend to mislead are well recognized grounds for reversal" (citing cases).

I think that in the interest of a fair trial of the issues in this case a new trial should be granted even though plaintiff might feel that she is entitled to judgment on the verdict. This court has wide discretion in the matter of granting new trials in order "to minister justice to all persons": Act of June 16, 1836, P. L. 784. See Com. v. Ragone, 317 Pa. 113, 127,176 A. 454.

At the new trial, plaintiff's claim should, in my judgment, be submitted to the jury, without the latter being "instructed" (as the majority opinion says they should be), "that on the admitted facts plaintiff by her silence during the periods specified had estopped herself from recovering for any items charged to her account prior to the last balancing of the book January, 1924." Whether there is an estoppel here at all depends upon disputed testimony. There is no factual situation here which warrants the trial court in giving binding instructions against the plaintiff as to any part of her claim. This case turns entirely on oral testimony and is therefore for the jury. See Nanty-Glo Boro. v. American Surety Co., 309 Pa. 236,163 A. 523; Reel v. Elder, 62 Pa. 308; and Grambs v.Lynch, 4 Pennypacker 243, 252.

Since the Statute of Limitations cannot run against a bank account and since there was in this case no "account stated," as this court and other courts have frequently defined an "account stated," I would deny defendant's motion to amend its affidavit of defense by setting up the Statute of Limitations.