Kolovsky, Bischoff and Botter. The opinion of the court was delivered by Bischoff, J.A.D.
The resolution of this appeal requires us to determine whether a clause in a "night depository agreement" between a bank and a customer, providing that "the use of the night depository facilities shall be at the sole risk of the" customer, is valid and enforceable.
Plaintiff Hy-Grade Oil Company was a regular customer of defendant New Jersey Bank. In February 1974, in order to protect the increasing cash supply generated by operations of its fuel business, plaintiff's manager Ronald Flaster signed a night depository agreement with defendant bank.*fn1 This agreement (in printed form and apparently used by other banks in the area) contained the following two provisions:
3(a) -- The bank shall not be responsible for the loss or destruction of the pouch or its contents, in whole or in part, either before or after its being placed in the night depository, resulting directly or indirectly from (1) defects in the pouch or its lock; (2) defects
in or failure of the night depository entrance chute or safe; (3) theft, burglary or embezzlement. The finding of the bank as to the presence or absence of the pouch in the night depository, and as to the contents thereof shall be conclusive and binding upon the undersigned.
(b) -- It is hereby expressly understood and agreed that the use of the night depository facilities is a gratuitous privilege extended by the bank to the undersigned for the convenience of the undersigned, and the use of the night depository facilities shall be at the sole risk of the undersigned.
Flaster contends that these provisions were neither pointed out nor explained to him. At the time of signing the agreement Flaster received a leather bag with a zipper and lock on top, together with a key to the lock.
Plaintiff's testimony was that on February 18, 1974 Ronald Flaster deposited $1,585 into the night depository box. On February 20, 1974 he called the bank to verify the amount in plaintiff's account and learned that the amount placed in the night depository on February 18 had not been credited to plaintiff's account. Flaster went to the bank and made inquiry, and was shown the top portion of plaintiff's bag still locked with the lower portion torn away. He was informed that when the bank was opened on February 19 and the collection bin opened, the portion of the bag exhibited was found but no money was located and the balance of the bag was missing. When the bank refused to credit plaintiff's account with the amount Flaster contends was deposited in the chute, plaintiff instituted this action contending that defendant (1) wrongfully refused to credit its account with the amount deposited and (2) negligently handled the contents of the night depository.
In addition to a general denial of plaintiff's allegations, defendant asserted that plaintiff's action was barred by the terms of the night depository agreement.
At the conclusion of trial the judge delivered an oral opinion granting defendant's motion to dismiss the complaint "predicated on the agreement as executed by the parties and the legal relationship established therein."
Before considering the import and validity of the exculpatory clauses in the agreement we turn to ...