Curran v. Witter

• Decision Date: 11 January 1887
• Citation: 68 Wis. 16,31 N.W. 705
• Parties: CURRAN, ADM'R, ETC., v. WITTER.
• Court: Wisconsin Supreme Court

68 Wis. 16

31 N.W. 705

CURRAN, ADM'R, ETC.,

v.WITTER.

Supreme Court of Wisconsin.

January 11, 1887.

Appeal from circuit court, Wood county.

In the year 1869 the defendant carried on the business of banking at Grand Rapids, in this state. In October of that year, James Curran, plaintiff's intestate, deposited with him $540, and received therefor the following certificate, written and signed by one Moody, the defendant's clerk:

“J. D. WITTER, BANKER, GRAND RAPIDS, WISCONSIN.

+-----------------------+
                ¦$540.¦OCTOBER 6, 1869. ¦
                +-----------------------+
                

Mr. James Curran has deposited in this bank five hundred and forty dollars, payable to his order on the return of this certificate properly indorsed.

J. D. WITTER.

Per MOODY.”

James Curran died in 1872 intestate, and in 1885 the plaintiff was appointed and duly qualified as administrator of his estate. In August, 1885, he brought this action upon such certificate of deposit. The defendant answered payment, and the six and twelve years statutes of limitation contained in Rev. St. §§ 4222, 4251. He also interposed a counter-claim for $540, and alleged therein that the amount so deposited with him by James Curran, and for which the certificate was issued, was by his clerk entered to the credit of Curran in the general account-book of the plaintiff, and, between October 6th (the date of the transaction) and the tenth of the same month, was paid to Curran, together with other sums deposited by him, and his account was thereupon balanced and closed; and that, through the negligence and mistake of Moody, the certificate of deposit in suit was not taken up or canceled, or any evidence that it was paid indorsed thereon.

On the trial the defendant offered in evidence the deposition of E. N. Moody, the defendant's clerk before mentioned, in which he gave testimony tending to show that he kept the defendant's banking books in 1869; that the entries therein in the account of James Curran were made by him as the transactions occurred; and that the same were correct. He also stated that the $540 placed to the credit of Curran was the same deposit for which the certificate was given, and that Curran checked out all of the money he deposited in the defendant's bank in 1869, and that the reason he did not require a surrender of the certificate for the $540 was that he supposed it to be merely a receipt for the money. He also said that he had no independent recollection of these transactions other than the deposit of the $540, which he did remember. The court sustained objections made, when the deposition was taken, to all the above testimony, and to all testimony of a like character, and excluded the same.

The entries in defendant's books showing the account of James Curran with the bank was also offered in evidence, and rejected. This account shows credits to Curran to the amount of $758.80; the first item being for $540 under date of October 6, 1869, and that it was all drawn by him on checks between October 8, and October 12, 1869. This is the account which Moody testified was in his handwriting and was correct.

The defendant having thus failed to get in any proof that the money for which the certificate was given had been paid, the court overruled the defense of the statutes of limitations, and directed a verdict for the plaintiff for $540, and interest thereon from the commencement of the action. A motion for a new trial was denied. The defendant appeals from the judgment entered pursuant to the verdict.

Gardner & Gaynor, for Witter, defendant and appellant.

The question whether the statute of limitations begins to run on a certificate of deposit until after demand of payment is an open one in this state. A promissory note, payable on demand, whether with or without interest, is due forthwith, so that the statute begins to run from the date of the note. Wheeler v. Warner, 47 N. Y. 519;Palmer v. Palmer, 36 Mich. 487;Herrick v. Woolverton, 41 N. Y. 600;Newman v. Kettelle, 13 Pick. 418;Larason v. Lambert, 12 N. J. Law, 247; Kingsbury v. Butler, 4 Vt. 458.

This certificate of deposit is, in legal effect, a promissory note, payable on demand. It contains all the elements necessary to constitute a promissory note; the statement of the deposit being, in legal effect, no more than a statement of the consideration, and the word “payable,” in the contract in which it stands, must be treated as an express promise to pay, as this is the only possible meaning which can be attributed to it. It was payable on demand, and the sum was certain. Hence the same rule applies, and statute began to run at date of certificate. Cate v. Patterson, 25 Mich. 191;Tripp v. Curtenius, 36 Mich. 494;Brummagim v. Tallant, 29 Cal. 503;Poorman v. Mills, 35 Cal. 118.

In New York, the courts ( National Bank of Ft. Edward v. Washington Co. Nat. Bank, 5 Hun, 605,) endeavor to draw a distinction between promissory notes payable on demand, and certificates of deposit, but it is a distinction without a difference, and the reasoning is not very satisfactory; the court laying stress apparently upon the fact that the certificate is payable only upon its return, and also the fact that it was issued by a bank.

“The first argument is equally applicable to a promissory note. Such paper is properly payable only upon presentation and return; and the mere fact that the instrument is issued by an individual, copartnership, or corporation engaged in the banking business, in our opinion, does not, or at least should not, make any difference.” Tripp v. Curtenius, supra.“To hold such instruments to be in legal effect promissory notes payable on demand, and yet not apply the principles applicable to demand promissory notes, either because of the peculiar form of the instrument, or because issued by a firm engaged in the business of banking, would be to create a distinction unsound in principle, and one not warranted by any reason or necessity that we can discover.” Id.

Either a certificate of deposit is due without any demand, or it is never due until demand made, and the maker has no right to make payment until demanded, for no tender can be made upon a demand until it is due. The statute of limitations commences at its date, or it never commences until demand made, and a recovery can be had upon such a certificate against the representatives of a maker after the lapse of any length of time.

Raymond & Haseltine, for Curran, plaintiff and respondent.

Was this cause of action barred by the statutes of limitation? The answer to this depends, of course, upon whether a cause of action had accrued, upon this certificate of deposit, more than six years prior to the bringing of this action.

It is conceded that no demand was made of payment, and this certificate was not presented for payment until within the past six years. We claim that it was not payable until presented; that it is altogether unlike a promissory note payable on demand, upon which an action may be brought without making any demand whatever. In those cases in which it has been held that a demand was not a condition precedent to a recovery, the ground of the decision has been that the bank, like the maker of any other note, was obliged to find out the payee, and pay the certificate. See cases cited by appellant.

In the case of Bellows Falls Bank v. Rutland Co. Bank, 40 Vt. 377, it was held that, when the certificate was payable “on the presentation of the certificate properly indorsed,” no action could be maintained thereon until a special demand had been made. In the case of Fells Point Sav. Inst. v. Weedon, 18 Md. 320, it was held that on a certificate of deposit “payable, with interest, on demand, on the return of the same,” the statute of limitations began to run only from the time of demand actually made.

In New York the doctrine is well established that the statute of limitations only begins to run where there is an actual demand of payment in due form, and that such demand must precede a suit. Pardee v. Fish, 60 N. Y. 265;Munger v. Albany City Nat. Bank, 85 N. Y. 587;Payne v. Gardiner, 29 N. Y. 171.

Section 4230 of chapter 177 of the Revised Statutes of this state, being the chapter on limitations, provides: “None of the provisions of this chapter shall apply to any action brought upon any bills, notes, or other evidence of debt issued by any bank, or issued or put in circulation as money.” If, as claimed by appellant, the rules applicable to all banks should be applied to this defendant, and if the certificate of deposit is but a promissory note payable on demand, we see no reason why the above provision of law should not apply to this case. If it is a promissory note, then it is simply an evidence of indebtedness, as has been frequently held by this court. If this is correct, then the above provision of the statute is applicable.

Section 4251 only applies in case the cause of action would be barred by the six-years limitation, by reason of the cause of action having accrued prior to the death of James Curran.

LYON, J.

In Klauber v. Biggerstaff, 47 Wis. 551, 3 N. W. Rep. 357, the late chief justice, after giving the elementary definition of a promissory note, proceeded to say that “the ordinary form of a certificate of deposit of money falls precisely within the definition, and it seems strange that there was ever a doubt that it was in a law a negotiable promissory note. O'Neill v. Bradford, 1 Pin. 390, and cases there cited. Such doubt, however, may now be considered at rest. Kilgore v. Bulkley, 14 Conn. 362;Bank of Orleans v. Merrill, 2 Hill, 295;Miller v. Austen, 13 How. 218.” After this authoritative statement of the rule, it is useless to cite any more of the numerous cases elsewhere which hold the same doctrine. Several of them will be found in the brief of counsel for the defendant. The certificate of deposit in suit is in the ordinary form of such instruments, and is, therefore, in substance and legal effect, a negotiable promissory note.

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