City Savings Bank v. Enos

The complaint alleges the following facts: That on December 14,1889, one Francisco José Pereira had on deposit in plaintiff’s bank over $1,000, and on May 24, 1890, he had there on deposit over $150; that on the first of these dates plaintiff paid to defendant’s intestate $1,000, at the latter’s instance and request, and on the second date it paid him $150, / ‘under the representation by said Sylvar to said bank, that he had authority from Francisco José Pereira to collect and receive” the said sums; that at these several dates said Sylvar executed to the bank a receipt for the money so received, reading:—

“Received of City Savings Bank, of Santa Cruz, [amount].

“(Signed) Francisco José Pereira.

“ (Witness) By Jackson Sylvar.”

“That said representation to said City Savings Bank by said Jackson Sylvar, that he had authority from said Francisco José Pereira to collect and receive from said bank said sums of $1,000 and $150.00, on account of said Pereira, and to sign said Pereira’s name to said receipts, were untrue, false, fraudulent, and were calculated to and did deceive said City Savings Bank”; that said Sylvar “had no authority to collect and receive said moneys or to sign the name of Pereira to said receipts”; that plaintiff did not discover “said fraud of Jackson Sylvar or his want of authority,” or that his representations were false and fraudulent, until after the death of Sylvar,—to wit, on February 17, 1896; that Sylvar died intestate, July 7, 1895, and defendant was duly appointed administrator of Sylvar’s estate, August 20,1895; due presentation of the claim of plaintiff is alleged, and its rejection by the administrator. By an amendment to the complaint, it was alleged that plaintiff relied and acted on and believed in the truth of Sylvar’s representation in respect of his claim of authority to draw the money; also, that Pereira commenced an action against said savings bank, to recover said sum of $1,150, and obtained judgment for that amount, with interest and costs.

The cause was tried by the court without a jury, and plaintiff had judgment, from which and from the order denying defendant’s motion for a new trial this appeal is taken. The court found the facts substantially as alleged in the complaint.

1. Appellant claims that the action is barred by the statute of limitations, and that the findings are not supported by the evidence. The action is for relief, on the ground of fraud, and must have been brought within three years,—the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake. (Code Civ. Proc., sec. 338, subd. 4.) The money was paid to Sylvar on December 14, 1889, and May 24, 1890, and he died July 7,1895, more than five years thereafter. The question is, Was fraud shown, and if so, was it proved that such fraud was not discovered until after Sylvar’s death? Pereira testified: “I did not give Jackson Sylvar authority to draw any of my money out of the bank or to use any of the same.” He further testified, as to the particular sums drawn by Sylvar, that he had given Sylvar no authority to draw the money. Mr. Haslam, cashier of the bank, testified (against the objection of defendant, that, by the provisions of subdivision 3 of section 1880 of the Code of Civil Procedure, he was incompetent to testify as to any fact which occurred before the death of Sylvar) that he paid the money in question, at the times mentioned, to Sylvar. He was asked if Sylvar made any representations at the time as to his authority to draw the money,

Witness Thurber testified for defendant that he heard Pereira say, in December, 1889, “that Jackson Sylvar could use his money—the money that he [Pereira] had.” Cashier Haslam testified for defendant that he had a conversation with Pereira in Sylvar’s presence shortly before the bank paid the money, in which Pereira said to witness “to allow Jackson Sylvar to draw any money against his account that he wished”; and that was the reason why he (witness) allowed Sylvar to draw the money. He also testified that he paid the money because Sylvar signed Pereira’s name to the receipt and had his pass-book, and that Sylvar had no written authority; and again he testified that another reason for paying the money was because Pereira told witness to allow him ‘ ‘ to draw against his account. ’ ’ The answer of the bank in the action brought by Pereira, verified by the president of the bank, was introduced by defendant, wherein, among other

It is evident that the court believed the testimony of Pereira and disbelieved the testimony of the cashier as to the question of Sylvar’s authority. Whatever may have been the cashier’s belief of Sylvar’s authority, founded on what he thought sufficient evidence, the fact is testified to and was accepted by the court as true, that no such authority was ever given by Pereira. The inference was permissible, from the evidence, that Sylvar took advantage of his possession of Pereira’s bankbook to obtain the money for his own use, knowing at the time that he had no authority to do so. In presenting the book to have the charges entered, and in signing receipts in Pereira’s name, he was falsely and fraudulently representing that he had authority to draw the money, and was perpetrating a fraud on the bank. There is evidence, which the court accepted as true, although it came from the witness Haslam, whom the court disbelieved in some respects, that Sylvar’s want of authority and his consequent fraudulent misrepresentations were not discovered until after Sylvar’s death, and when, in the trial of the action brought by Pereira against the bank, the facts came out and were established, and judgment rendered for Pereira. Haslam testified that the bank paid the

It is advised that the judgment and order be affirmed.

Haynes, C., and Cooper, C., concurred.

For the reasons given in the foregoing opinion the judgment and order are affirmed.

McFarland, J., Temple, J., Henshaw, J.