Bates v. Capital State Bank

• Decision Date: 28 July 1910
• Citation: 18 Idaho 429,110 P. 277
• Parties: CADDIE BATES, Appellant, v. CAPITAL STATE BANK and M. P. MEHOLIN, Receiver, Respondents
• Court: Idaho Supreme Court

110 P. 277

18 Idaho 429

CADDIE BATES, Appellant, v. CAPITAL STATE BANK and M. P. MEHOLIN, Receiver, Respondents

Supreme Court of Idaho

July 28, 1910

COMPLAINT-DEMURRER-CAUSE OF ACTION-PROPERTY-DEPOSIT WITH BANK OR BANKER-DEMAND-STATUTE OF LIMITATIONS.

(Syllabus by the court.)

1. Under the provisions of sec. 4168, Rev. Codes, the complaint must contain, among other things, a statement of the facts constituting the cause of action in ordinary and concise language and a demand for the relief claimed.

2. Held, that this is in form an action in replevin or claim and delivery under the provisions of the statute of Idaho.

3. The technicalities of pleading under the common law have been dispensed with by the provisions of our code.

4. Implications of law arising from facts alleged in the complaint and presumptions of law arising therefrom need not be pleaded.

5. Held, that the complaint states a cause of action.

6. A bailee who receives property as a deposit for safekeeping is bound to deliver it to the bailor upon demand, unless he has a lien on it, or is prevented from so doing by the real owner or act of law.

7. In an action against a depositary, the burden is on the depositor to prove the bailment and failure or refusal to return the property on demand. If that is shown, it then becomes incumbent upon the depositary to return the same or show sufficient circumstances or facts that would excuse him in law for refusing.

8. A "deposit" is a naked bailment of goods to be kept for the depositor without reward and to be returned when he shall demand it.

9. Where a bank or banker receives property upon deposit, there results an implied contract that he will return it to the depositor upon demand.

10. Under the provisions of sec. 4059, Rev. Codes, where an action is brought to recover money or property deposited with a bank or banker, the statute of limitations does not begin to run until after demand by the depositor.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Fremont Wood, Judge.

Action to recover possession of certain railroad bonds or their value in case a return cannot be had. Demurrer to the complaint on the ground that it does not state a cause of action, and other grounds, sustained by the trial court. Reversed.

Reversed and remanded, with direction. Costs awarded to the appellant.

Jackson & Taylor, for Appellant.

Under the provisions of our code the technicalities of pleading have been dispensed with, and the plaintiff need only state his cause of action in ordinary and concise language. ( Rauh v. Oliver, 10 Idaho 3, 70 P. 20; Elliott v Collins, 6 Idaho 266, 55 P. 301.)

It never has been the practice of this court to require the plaintiff to set up implications or presumptions of law. (1 Estee's Pleadings, secs. 185, 186.)

Under the code procedure, where facts are alleged from which the law will imply a promise, it is not necessary to allege a promise in terms, such allegation being a mere conclusion of law. (Wilkins v. Stidger, 22 Cal. 232, 83 Am. Dec 64; Boston Clothing Co. v. Garland, 90 Minn. 520, 97 N.W. 433; Voight v. Brooks, 19 Mont. 374, 48 P. 549; Waite v. Willis, 42 Ore. 288, 70 P. 1034; De La Guerra v. Newhall, 55 Cal. 21.)

"Ultimate facts only should be pleaded and not probative facts or conclusions of law." (Orman v. City of Pueblo, 8 Colo. 292, 6 P. 931; 1 Estee's Pleadings, sec. 190; Green v. Palmer, 15 Cal. 412, 76 Am. Dec. 492.)

"A complaint is not defective in substance for omitting to state conclusions to be implied from the facts sufficiently stated." (Case v. Carroll, 35 N.Y. 385.)

In an action against a depositary, the burden is on the depositor to prove the bailment and a failure or refusal to return the property on demand. If a failure or refusal to return the property on demand is shown, it becomes incumbent upon the depositary to return the same. (Dart v. Lowe, 5 Ind. 351; Darling v. Younker, 37 Ohio St. 487, 41 Am. Rep. 532; 13 Cyc. 810; Davis v. Tribune Job Printing Co. 70 Minn. 95, 72 N.W. 808.)

"The depositor makes a prima facie case when he shows a deposit and a demand and a refusal of the thing deposited. The onus is then upon the depositary to exonerate himself of the liability." (Wiser v. Chesley, 53 Mo. 547; Huxley v. Hartzell, 44 Mo. 370; Kincheloe v. Priest, 89 Mo. 240, 58 Am. Rep. 117, 1 S.W. 235; Thompson v. St. Louis etc. R. Co., 59 Mo.App. 37; Siems v. Bank, 7 S.D. 338, 64 N.W. 167.)

Wyman & Wyman, and Pence & Tennyson, for Respondents.

The complaint is fatally defective when it fails to show plaintiff to be entitled to the possession of the chattel sought to be replevied. (Cameron v. Wentworth, 23 Mont. 70 (78), 57 P. 648; Midland Contracting Co. v. Toledo Foundry etc. Co., 154 F. 797, 83 C. C. A. 489; Bierman v. Reinborn, 71 N.J.L. 422, 58 A. 1083; Wood v. Orser, 25 N.Y. 348; Scofield v. Whitelegge, 49 N.Y. 259; Rucker v. Donovan, 13 Kan. 251, 19 Am. Rep. 84; Lane v. Chadwick, 146 Mass. 68, 15 N.E. 121; Richbourg v. Rose, 53 Fla. 173, 125 Am. St. 1061, 44 So. 69, 12 Ann. Cas. 274; Eldridge v. Sherman, 70 Mich. 266, 38 N.W. 255; Castro v. Murray, 47 Ore. 57, 81 P. 388, 883; Ferguson v. Lauterstein, 160 Pa. 427, 28 A. 852; Bogard v. Jones, 28 Tenn. 739; Jimmerson v. Greene, 7 Neb. 26; Cassell v. Western Stage Co., 12 Iowa 47; Lamotte v. Wisner, 51 Md. 543; Garcia v. Gunn, 119 Cal. 315, 51 P. 684; Metal Co. v. Daugherty, 204 Mo. 71, 102 S.W. 538; Linsay v. Wyatt, 1 Idaho 738; Cunningham v. Stoner, 10 Idaho 557, 79 P. 228; Idaho Placer Min. Co. v. Green, 14 Idaho 249, 93 P. 954.)

Replevin can only be maintained against one actually in the possession or control of the chattels or one who, anticipating the suit, disposes of them to defeat the action. (Shinn on Replevin. sec. 164; Robb v. Dobrinski, 14 Okla. 563, 78 P. 101. 1 Ann. Cas. 981; De Priest v. McKinstry, 38 Neb. 194, 56 N.W. 806; Sullivan v. Girson, 39 Mont. 274, 102 P. 320; Timp v. Dockham, 32 Wis. 146 (151).)

"To entitle a person to maintain trover, he must not only have a special or general property in the chattel, but also must have been in possession or entitled to immediate possession thereof at the time of the conversion." (28 Am. & Eng. Ency. of Law. 659, where the cases are collated; Riciotto v. Clement, 94 Cal. 105, 29 P. 414.)

The allegation of breach of contract is insufficient as against a special demurrer. It does not allege the bonds have not been returned nor does it state that plaintiff is not in possession of them. (Scroufe v. Clay, 71 Cal. 123, 11 P. 882.)

Upon the strict doctrine that this is an action in replevin, three years after the deposit would be the limit within which an action might be brought. (Wright v. Paine, 62 Ala. 340, 34 Am. Rep. 24.)

SULLIVAN, C. J., AILSHIE, J. Ailshie, J., Sullivan, C. J., concurring.

OPINION

SULLIVAN, C. J.

This action was brought to recover the possession of twenty-one first mortgage bonds of the Pacific and Idaho Northern Railway Co., or their alleged value of $ 29,496.25.

It is alleged in the complaint that said bonds were deposited with the Capital State Bank of Idaho on the 23d of August, 1901; that each and every of said bonds were at the time of the deposit and ever since have been and now are the sole and separate property of the plaintiff; that on the 3d of January, 1910, plaintiff served a written demand on the defendants, the defendant M. P. Meholin being the receiver of said bank, whereby she demanded immediate delivery to her of said bonds, or in the event of the inability of the defendants to deliver the same, the value thereof, alleged to be the sum of $ 29,496.25. It is also alleged that said demand is the first and only demand made by plaintiff for the return of said bonds or the value thereof or any portion of the same; that after making said demand, the said bank and the said receiver neglected, failed and refused to return said bonds or any of them to the plaintiff or their value or any portion of the same, and on information and belief, it is alleged that said bonds and each of them or the value thereof have remained on deposit with said defendant bank and in the custody thereof, and ever since they were deposited in said bank and now are in the custody of said Meholin as receiver. The prayer is for judgment against the defendants for the return of said bonds, and if return cannot be made, for judgment for their value with accruing interest and the costs of action and for other relief.

To this complaint the defendants interposed a demurrer, on the ground that it does not state facts sufficient to constitute a cause of action; that the action is barred by the provisions of secs. 4052, 4053 and 4054 of the Rev. Codes, and other grounds.

Said demurrer was sustained by the court, and thereupon plaintiff elected to stand upon the complaint and judgment of dismissal was entered against her. This appeal is from said judgment.

There are several specifications of error assigned. There are, however, but two questions involved in this controversy; First, does the complaint state a cause of action, and, second, is the action barred by the statute of limitations?

First, it is contended by counsel for respondent that this is an action in replevin, and comes under the provisions of our statute in regard to the claim and delivery of personal property, and it is contended that the complaint does not state a cause of action, because it nowhere is alleged therein that the plaintiff is entitled to the immediate possession of said bonds.

This is clearly an action for the recovery of possession of personal property, to wit, said bonds, and is in form the common-law action of replevin, or an action in "claim and delivery" as designated by the provisions of our statute, secs....