December 2016 - Philippine Supreme Court Decisions/Resolutions
G.R. No. 208672, December 07, 2016 - PHILIPPINE NATIONAL BANK, Petitioner, v. PABLO V. RAYMUNDO, Respondent.
G.R. No. 208672, December 07, 2016
PHILIPPINE NATIONAL BANK, Petitioner, v. PABLO V. RAYMUNDO, Respondent.
D E C I S I O N
This is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to reverse and set aside the Decision1 dated May 31, 2013 and the Resolution dated August 14, 2013 of the Court of Appeals (CA) in CA-G.R. CV No. 96760. The CA denied the appeal of Philippine National Bank (PNB)2 from the civil aspect of the Decision dated December 4, 20093 of the Regional Trial Court (RTC) of San Pedro Laguna, Branch 93, which acquitted Pablo V. Raymundo of the charge of violation of Section 3(e) of Republic Act (RA) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, in Criminal Case No. 0414-SPL.
The CA summarized the facts as follows.4
On July 30, 1993, accused-appellee Pablo V. Raymundo (Raymundo), then Department Manager of PNB San Pedro Branch, approved for deposit a foreign draft check dated June 23, 1993, in the amount of $172,549.00 issued by Solomon Guggenheim Foundation, drawn against Morgan Guaranty Company of New York, payable to Merry May Juan (Ms. Juan) in the opening of the latter's checking account with PNB San Pedro Branch. Consequent to the approval for deposit of the foreign draft check, Checking Account No. 447-810168-1 and a check booklet were issued to Ms. Juan. On even date, Ms. Juan drew six (6) PNB Checks, five (5) of which were made payable to C&T Global Futures and one (1) payable to "CASH", all in the aggregate amount of FOUR MILLION PESOS (P4,000,000.00). The six (6) checks were negotiated by Ms. Juan and were approved for payment on the same day by Raymundo, without waiting for the foreign draft check, intended to fund the issued check, to be cleared by the PNB Foreign Currency Clearing Unit.
On August 2, 1993, the PNB Foreign Checks Unit and Clearing Services received the foreign draft check for negotiation with Morgan Trust Company of New York, through PNB's correspondent bank in New York, the Banker's Trust Co. of New York (BTCNY for brevity).
On August 6, 1993 and within the clearing period of twenty-one (21) days for foreign draft checks, the PNB received a telex message from BTCNY that the foreign draft check was dishonored for being fraudulent. Subsequent to the said telex message, a letter dated August 20, 1993 was sent by BTCNY to the PNB Corporate Auditor stating the same reason for such dishonor.
On September 9, 1993, Mr. Emerito Sapinoso, Department Manager II of the PNB Foreign Currency Clearing Unit, sent a memorandum to Raymundo, as then Manager of PNB San Pedro, and informed the latter of the return and dishonor of the foreign currency draft and the corresponding debit of the PNB's account to collect the proceeds of the erroneously paid foreign draft check.
For irregularly approving the payment of the six (6) checks issued by Ms. Juan, without waiting for the foreign draft check to be cleared, Raymundo, as then Department Manager of PNB San Pedro Branch, was administratively charged by PNB for Conduct Prejudicial to the Interest of the Service and/or Gross Violation of Bank's Rules and Regulations.
Accused Pablo V. Raymundo denied the allegations that he committed acts which defrauded the PNB of the sum of P4,000,000.00. Outlining the procedure from the time the check was presented to the PNB San Pedro Laguna Branch where he worked as Branch Manager up to the time it is paid or dishonored, he noted that the check will pass through the bookkeeper, Ms. Leonida Moredo, who would determine if the check is funded or not. If the check is not funded, the bookkeeper will accomplish a check return slip and will stamp the back and front of the check that it has no funds and thereafter give it to the accountant, Rodrigo Camello, to verify if indeed the check is not funded. After the receipt of the check, the accountant will check the ledger and the circumstances of the return and thereafter forward the same to the branch manager, or in his absence, the cashier. Upon receipt of the check deposit slip, the branch manager, if there is no return slip, would automatically sign the check because the absence of a return slip is his guide that the check is good. He noted that it is the duty of the bookkeeper to go over the records of the account of each particular client. When he came to know that withdrawals had been made on a deposited check which had no funds, he immediately instructed bookkeeper Leonila Moredo and accountant Rodrigo Camello to hold further withdrawals on the account. He likewise filed criminal charges against Merry May Juan. The case was decided in his favor and the accused therein was made to pay him and the bank the amount of the check. There was no actual payment made however.
In an Information dated September 27, 1996, the Office of the Ombudsman charged Raymundo with violation of Section 3(e) of RA No. 3019, to wit:
That on or about August 3, 1993, or subsequent thereto, in San Pedro, Laguna, Philippines and within the jurisdiction of this Honorable Court, accused Pablo V. Raymundo, then the Assistant Department Manager of PNB, San Pedro Branch, Laguna, and a public officer, while in the performance and taking advantage of his official function as manager, with evident bad faith, manifest partiality, and gross inexcusable negligence, did then and there willfully and unlawfully approve/allow the encashment of a total of six (6) checks drawn against an uncleared foreign checks in complete disregard of existing banking regulations, that was subsequently returned by the drawee bank as a fraudulent foreign check, thus causing undue injury to complainant PNB in the total sum of P4,000,000.00.
CONTRARY TO LAW.
Upon arraignment, Raymundo entered a plea of not guilty to the charge. He waived his right to a pre-trial, and trial on the merits ensued.
After trial, the RTC rendered the Decision dated December 4, 2009, the dispositive portion of which reads:
In light of the foregoing, it is very clear that the prosecution failed to establish the guilt of accused Pablo V. Raymundo beyond reasonable doubt for the crime charged.
Consequently, accused Pablo V. Raymundo is hereby acquitted of the charge of Violation of Sec. 3(e), R.A. 3019.
The RTC held that it would be too harsh and inequitable to impose criminal liability upon Raymundo, who approved the withdrawal because of his belief that the checks were funded, due to the absence of the stamp mark "Returned Check'' on the checks, and check return slips. Considering that Raymundo's duties as Branch Manager entailed a lot of responsibility, the RTC found it almost unreasonable to expect him to directly and personally check the books of accounts of each particular client every time a check is presented to the bank for payment and for his approval. The RTC stressed that it has been established that the responsibility to go over the account records of clients falls on the bookkeeper, and Raymundo's act of relying upon the bookkeeper's verification that the checks were good cannot be deemed gross and inexcusable negligence.
Aggrieved, the PNB appealed from the civil aspect of the RTC Decision which acquitted Raymundo of the charge of violation of Section 3(e) of R.A. No. 3019.
In a Decision dated May 31, 2013, the CA denied the PNB's appeal for lack of merit. In a Resolution dated August 14, 2013, it also denied the PNB's motion for reconsideration for lack of merit. It ruled that Raymundo acted in good faith in relying upon his subordinates, i.e., the bookkeeper and accountant, who were primarily assigned with the task of clearing the checks and ensuring that they are sufficiently funded. It held that he has no duty to go beyond the verification of the documents submitted by the bookkeeper and the accountant, and to personally authenticate the procedures taken. It added that considering that his duties as Branch Manager entails a lot of responsibility, it is unreasonable to require him to accomplish and direct a personal examination of the records of the account of each particular client before affixing his signature on the documents as approving authority.
Dissatisfied, the PNB filed this petition for review on certiorari, arguing that the CA committed serious errors, namely: (1) when it ruled that the trial court aptly concluded that there was lack of malice or bad faith, nor negligence on the part of Raymundo in approving the payment of the checks; (2) when it failed to consider Raymundo's negligence and entirely disregarded the testimonial and documentary evidence of the PNB before the trial court; and (3) when it ruled that Raymundo is not civilly liable for the offense charged.5
The petition is meritorious.
The Court explains the two kinds of acquittal recognized by law, as well their effects on the civil liability of the accused, thus:
Our law recognizes two kinds of acquittal, with different effects on the civil liability of the accused. First is an acquittal on the ground that the accused is not the author of the act or omission complained of. This instance closes the door to civil liability, for a person who has been found to be not the perpetrator of any act or omission cannot and can never be held liable for such act or omission. There being no delict, civil liability ex delicto is out of the question, and the civil action, if any, which may be instituted must be based on grounds other than the delict complained of. This is the situation contemplated in Rule 111 of the Rules of Court. The second instance is an acquittal based on reasonable doubt on the guilt of the accused. In this case, even if the guilt of the accused has not been satisfactorily established, he is not exempt from civil liability which may be proved by preponderance of evidence only.
The Rules of Court requires that in case of an acquittal, the judgment shall state "whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist."6
In light of the foregoing, Raymundo can still be held civilly liable for the charge of violation of Section 3(e) of R.A. No. 3019 because he was only acquitted for failure of the prosecution to establish his guilt beyond reasonable doubt, and the RTC and the CA erroneously determined that no civil liability might arise from his act of relying on the bookkeeper's verification that the six (6) checks amounting to P4,000,000.00 were all good, but later turned out to be drawn against uncollected deposit, i.e., the account has, on its face, sufficient funds but not yet available to the drawer because the deposit, usually a check, had not yet been cleared.7
Factual findings of the appellate court generally are conclusive, and carry even more weight when said court affirms the findings of the trial court, absent any showing that the findings are totally devoid of support in the records, or that they are so glaringly erroneous as to constitute grave abuse of discretion.8 In this case, however, both the RTC and the CA totally ignored the testimonial and documentary evidence of the PNB, showing Raymundo's gross negligence in approving the payment of six (6) checks negotiated by Ms. Juan on August 3, 1993 and August 5, 1993, without waiting for the foreign draft check intended to fund the peso checking account she opened on July 30, 1993, to be cleared by the PNB Foreign Currency Clearing Unit.
Despite their having been identified9 and formally offered10 by PNB, and admitted in evidence11 by the trial court, the RTC and the CA failed to give due credence to Raymundo's affidavits, complaints and testimonies before the other trial courts in San Pedro, Laguna, where he had filed separate criminal and civil cases against Ms. Juan and her cohorts in order to recover the value of the six (6) checks which were encashed despite having been drawn against uncollected deposit. Contrary to Raymundo's claim, such extra-judicial admissions do not violate his right against self incrimination, which simply proscribes the legal process of extracting from the lips of the accused an admission of guilt. Suffice it to state that Raymundo's Complaints12 and Affidavits13 in the civil and criminal cases he filed against Ms. Juan contain his voluntary statements, which were subscribed and sworn to either before the Assistant Provincial Prosecutor and the Judge or the Notary Public, whereas his testimonies14 were given during hearings in the said cases. Clearly, Raymundo is not being compelled to testify against himself. In the same vein, PNB cannot be faulted for merely using the documentary and testimonial evidence he willingly proffered in the cases he had filed to recover the losses incurred by the bank due to his unauthorized approval for payment of the six (6) checks drawn against the uncollected deposit.
The circumstances showing Raymundo's gross negligence can be gathered in the Complaint for sum of money he had filed against Ms. Juan and her cohorts, to wit:
3. That on July 30, 1993, a group of persons composed of the above-named defendants [including Ms. Juan] who, for some time, have been known to the plaintiff [Raymundo] as ranking and top executives of the herein defendant corporation [payee C&T Global Futures, Inc.] engaged in the foreign currency trading business, came to the Office of herein plaintiff. They intimated their plan of opening a current account with the said San Pedro Branch of the Philippine National Bank. They let it appear that this was in line with C&T Global Futures, Inc.'s on-going contest which the said group wanted to win the first prize which was purportedly a round-trip ticket to Hong Kong. For this purpose, they wanted the checking account to be opened immediately in the name of defendant Mary May M. Juan with the amount of $172,549.00 (P4,778,744.55) embodied in a Morgan Guaranty and Trust Company of New York Check No. 069748 as initial deposit. They further assured the herein plaintiff that some more dollars are coming in the near future if this transaction would prosper;
4. That at first, plaintiff herein [Raymundo] was a bit hesitant to immediately accommodate the seemingly hasty manner of opening a current account not only on the fact that the amount involved was quite big but also on account that he was dealing with a foreign check. But when the group, particularly defendant "Cleo" Tan, showed to him the record of a just-concluded overseas call confirming that the said Morgan Guaranty Company check was good, plaintiff allowed the issuance of six (6) checks bearing different dates in the total amount of P4,000,000.00 all payable to herein defendant corporation upon the undertaking of the group that the same would not be "traded" or negotiated until the said Morgan Guaranty Trust Co. check has been finally cleared;
5. That in utter violation of the trust and confidence reposed in them by the herein plaintiff, defendants went on negotiating all those six (6) checks until it was discovered that the said Morgan Guaranty Trust Company Check No. 069748 was "FRAUDULENT" and from all indications, herein defendants are parts of the criminal syndicate; 15
Raymundo's gross negligence is likewise underscored in the Affidavit dated October 25, 1993 he had executed to support his complaint for estafa against Ms. Juan and her cohorts, thus:
2. That on July 30, 1993, while I was at the office of PNB San Pedro, Laguna, Cleopatra Tan alias "Cleo", Josefina Resari, and Merry May M. Juan, representing themselves as department manager, Vice President and employee, respectively of the C&T Global Futures, Inc., and some persons whose identities are not yet known, by false pretenses and fraudulent acts, intimated to me their plan of opening a current account with the Philippine National Bank San Pedro Branch;
3. That, they told me of their plan of opening a current account in line with the C&T Global Futures, Inc.'s on-going contest with the end in view of winning its hefty first prize trip to Hong Kong and for that purpose they are ready to make an initial deposit of US$172,549.00, embodied in a Morgan Guaranty Trust Company of New York [check];
4. That, because what was shown to me was a foreign check and involving as it does a huge amount of money, I was hesitant to accommodate them and made further inquiries from them until Cleopatra Tan gave me a very strong and convincing assurance that the Morgan Guaranty Check was good by way of telling me of a just-concluded overseas call confirming that said check was good, which facts she further buttressed later by giving a copy of the bill of the detailed transaction x x x;
5. That, not knowing their dirty scheme and desirous to generate bigger bank deposits, I allowed them to make an initial deposit of US$172,549.00 embodied as earlier stated in a Morgan Guaranty Trust Company of New York [check] dated June 29, 1993 bearing No. 069748 with Merry May M. Juan as payee, xxx;
6. That, having been fully assured that the Morgan check is good and trusting on their respective representations that they are top executives of the C&T Global Futures, Inc., I allowed the issuance of six (6) checks, as follows:
PAYEE AMOUNT CHECK NO. DATE C&T Global Futures Inc. P1,000,000.00 004801 July 30, 1993 C&T Global Futures Inc. 350,000.00 004802 July 30, 1993 C&T Global Futures Inc. 350,000.00 004803 July 30, 1993 C&T Global Futures Inc. 1,000,000.00 004804 July 30, 1993 C&T Global Futures Inc. 1,000,000.00 004805 July 30, 1993 Cash 300,000.00 004806 August 5, 1993
with a total amount of P4,000,000.00, Philippine Currency x x x;
7. That I allowed the aforecited checks to be issued on the strong and collective undertaking of all the accused, that the same would not be traded until after the Morgan Guaranty Check shall have been cleared;
8. That, in utter disregard of the trust and confidence I reposed on all of them, in violation of their undertaking, accused negotiated all the six (6) checks until it was discovered that the Morgan Guaranty Check was fraudulent xxx as per memorandum of the Assistant Department Manager II Clearing Services Group, Philippine National Bank dated September 9, 1993, x x x;16
While his prompt filing of criminal and civil cases against Ms. Juan and her cohorts for the recovery of the money negates bad faith in causing undue injury to the PNB, it incidentally revealed Raymundo's gross negligence (1) in allowing the peso conversion of the foreign check to be credited to her newly-opened peso checking account,17 even before the lapse of the 21-day clearing period, and (2) in issuing her a check booklet, all on the very same day the said account was opened on July 30, 1993. In his desire to secure bigger bank deposits, Raymundo disregarded the bank's foreign check clearing policy, and risked his trust and confidence on Ms. Juan's and her cohorts' assurance that the foreign check was good and that they would not negotiate any check until the former check is cleared.
Since their business and industry are imbued with public interest, banks are required to exercise extraordinary diligence, which is more than that of a Roman pater familias or a good father of a family, in handling their transactions.18 Banks are also expected to exercise the highest degree of diligence in the selection and supervision of their employees.19 By the very nature of their work in handling millions of pesos in daily transactions, the degree of responsibility, care and trustworthiness expected of bank employees and officials is far greater than those of ordinary clerks and employees.20
A bank's disregard of its own banking policy amounts to gross negligence, which is described as "negligence characterized by the want of even slight care, acting or omitting to act in a situation where there is duty to act, not inadvertently but willfully and unintentionally with a conscious indifference to consequences insofar as other persons may be affected."21 Payment of the amounts of checks without previously clearing them with the drawee bank, especially so where the drawee bank is a foreign bank and the amounts involved were large, is contrary to normal or ordinary banking practice.22 Before the check shall have been cleared for deposit, the collecting bank can only assume at its own risk that the check would be cleared and paid out.23 As a bank Branch Manager, Raymundo is expected to be an expert in banking procedures, and he has the necessary means to ascertain whether a check, local or foreign, is sufficiently funded.
Raymundo's act of approving the deposit to Ms. Juan's newly-opened peso checking account of the peso conversion [P4,752,689.65]24 of the foreign check prior to the lapse of the 21-day clearing period is the proximate cause why the six (6) checks worth P4,000,000.00 were later encashed, thereby causing the PNB undue injury. Defined as that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces injury and without which the result would not have occurred, the proximate cause can be determined by asking a simple question: "If the event did not happen, would the injury have resulted? If the answer is no, then the event is the proximate cause."25cralawred If Raymundo did not disregard the bank's foreign check clearing policy when he approved crediting of the peso conversion of Ms. Juan's foreign check in her newly-opened peso checking account, the PNB would not have suffered losses due to the irregular encashment of the six (6) checks.
It is well settled that actual damages, to be recoverable, must not only be capable of proof, but must actually be proved with a reasonable degree of certainty. To justify an award of actual damages, there must be competent proof of the actual amount of loss, credence can be given only to claims which are duly supported by receipts, and courts cannot simply rely on speculation, conjecture or guesswork in determining the fact and amount of damages.26 While the PNB claims having suffered damages to the extent of P4,000,000.00 due to the encashment of checks drawn against uncollected deposit, the testimonial and documentary evidence on record show that it only incurred losses in the total sum of P2,100,882.87. Based on the accounts receivable ledger27 and the PNB's letter28 dated December 5, 1995, Raymundo's account receivable was reduced to P2,100,882.87 after the application of six (6) check payments aggregating P1,725,172.03 on October 1, 1993.
Confirming the two documentary evidence, Jose Rodrigo Cabello, PNB's own witness and former accountant of its San Pedro Laguna Branch, has testified that the bank's losses out of Raymundo's approval of the checks per its accounts receivable ledger, is around P2,100,000.00:
[Atty. Reyes Geromo, counsel for PNB and for the prosecution] Q. Mr. Witness, as of today do you know how much is still the bank loss out of the said approval of withdrawal by the accused? xxx [PNB Witness Jose Rodrigo Cabello] A. Around P2,100,000.00, Sir. I think. Q. And what was your basis Mr. Witness? Do you have evidence to show that amount Mr. Witness? A. Yes, Sir. Q. What particular document, Mr. Witness? A. The Accounts receivable ledger, Sir. Q. When you said accounts receivable ledger, is this the document previously marked as Exhibit "P", Mr. Witness? A. Yes, Sir.29
Cabello's testimony is corroborated by Victor Arapan, PNB's witness and accountant of its San Pedro Branch as of August 14, 2001, who testified that per its books of account, the amount of P2,100,882.87 remained unpaid or uncollected by the bank, and is still lodged as account receivable of "Merry May Juan c/o Pablo Raymundo," and that as of said date, the damages sustained due to the fraudulent encashment of the foreign check is P5,524,023.57.30 However, considering that it failed to formally offer in evidence or at least attach to the record the statement of account in order to prove such higher amount of damages, PNB can only be awarded actual damages in the amount of P2,100,882.87.
Since PNB was unduly deprived of its use of the P2,100,882.87 due to Raymundo's gross negligence, the Court also finds it proper to impose on such forbearance of money the following legal interests on the damages awarded, sans an express contract as to such interest rate, in line with current jurisprudence:31 (1) twelve percent (12%) per annum reckoned from the filing of the criminal information on May 19, 1997 — which is the making of judicial demand for his liability until June 30, 2013;32 (2) the reduced interest of six percent (6%) per annum from July 1, 201333 until finality of this Decision; and (3) the interest rate of 6% per annum from such finality until fully paid.
WHEREFORE, premises considered, the petition is GRANTED, and the Decision dated May 31, 2013 and the Resolution dated August 14, 2013 of the Court of Appeals in CA-G.R. CV No. 96760 are REVERSED and SET ASIDE. Accordingly, petitioner Pablo V. Raymundo is ordered to pay the Philippine National Bank actual damages in the amount of P2,100,882.87 with the following legal interest rates, in line with current jurisprudence:34 (1) twelve percent (12%) per annum, reckoned from the filing of the criminal information on May 19, 1997 until June 30, 2013; and (2) six percent (6%) per annum from July 1, 2013 until finality of this Decision; and (3) six percent (6%) per annum from such finality until fully paid.
Velasco, Jr., (Chairperson), Perez, Reyes and Jardeleza, JJ., concur.
1 Penned by Associate Justice Sesinando E. Villon, with Associate Justices Florito S. Macalino and Pedro B. Corales, concurring.
2 PNB was originally established as a government bank in 1916, but has been 100% privatized since 2007.
3 Penned by Judge Francisco Dizon Paño.
4 Rollo, pp. 55-56.
5Rollo, pp. 39-40.
6Dr. Lumantas v. Sps. Calapiz, Jr., 724 Phil. 248, 253-254 (2014), citing Manantan v. Court of Appeals, G.R. No. 107125, January 29, 2001, 350 SCRA 387, 397.
7Salazar v. People, 458 Phil. 504, 511 (2003).
8Navaja v. De Castro, G.R. No. 182926, June 22, 2015, 759 SCRA 487, 503.
9 TSN, December 4, 2002, pp. 5-9.
10 Records, Vol. II, pp. 291-295.
11 Records, Vol. III, p. 418.
12 Records, Vol. II, pp. 305-A-306 and 339-344.
13Id. at 307-308 and 345-346.
14 Id. at 325-409.
15Id. at 339-341. (Emphasis added.)
16 Id. at 307-308. (Emphases added.)
17Id. at 206; Subsidiary Ledger showing that on July 30, 1993, P4,752,689.85 was deposited under Ms. Juan's checking account.
18Philippine National Bank v. Sps. Cheah, 686 Phil. 760, 771 (2012), citing Philippine Saving Bank v. Chowking Food Corporation, G.R. No. 177526, July 4, 2008, 557 SCRA 318, 330, citing Bank of the Philippine Islands v. Court of Appeals, 383 Phil. 538, 554 (2000).
19Equitable PCI Bank v. Tan, 642 Phil. 657, 674 (2010), citing Citibank, N.A. v. Cabamongan, G.R. No. 146918, May 2, 2006, 488 SCRA 517, 532.
21Philippine National Bank v. Sps. Cheah, supra note 18, at 772.
22Id., citing Banco Atlantico v. Auditor General, 171 Phil. 298, 304 (1978).
23Associated Bank v. Tan, 487 Phil. 512, 525 (2004).
24 Records, Vol. II, p. 206.
25cralawred Philippine National Bank v. Sps. Cheah, supra note 18, at 77, citing Allied Banking Corporation v. Lim Sio Wan, G.R. No. 133179, March 27, 2008, 549 SCRA 504, 518.
26Bacolod v. People of the Philippines, 714 Phil. 90, 99 (2013).
27 Records, Vol. II, p. 205.
28 Records, Vol. I, p. 2.
29 TSN, August 22, 2000, pp. 38-39.
30 TSN, August 14, 2001, pp. 8-9.
31Nacar v. Gallery Frames, et al., 716 Phil. 267 (2013), 282-283; Secretary of the Department of Public Works and Highways v. Spouses Tecson, G.R. No. 179334, April 21, 2015, 756 SCRA 389.
32 The last day of the effectivity of Central Bank (CB) Circular No. 905 which provides the twelve percent (12%) per annum interest rate for loan or forbearance of money in the absence of an express contract as to such rate.
33 The effectivity date of (CB) Circular No. 799 which provides the six percent (6%) per annum interest rate for loan or forbearance of money in the absence of an express contract as to such rate.
34 See note 31.