Boyden v. The President and Directors of the Bank of Cape Fear
| Decision Date | 31 January 1871 |
| Citation | 65 N.C. 13 |
| Court | North Carolina Supreme Court |
| Parties | NATHANIEL BOYDEN v. THE PRESIDENT AND DIRECTORS OF THE BANK OF CAPE FEAR. |
The ordinary relation subsisting at common law between a bank and its customers on a general deposit account is simply that of debtor and creditor. A deposit by a customer, in the absence of any special agreement to the contrary, creates a debt, and the payment by the bank of the customer's checks, discharges such debt pro. tanto. The bank or the customer may at any time discontinue their dealings, and the balance of the account between them can be easily ascertained by a simple calculation.
The general rule in adjusting a running account between a bank and its customer is “the first money paid in, is the first money paid out.” The first item on the debit side is discharged or reduced by the first item on the credit side. But this rule is not strictly applicable to a case where the account commenced before the late civil war, and was continued during it, as that part of the account which was in Confederate currency is not to be governed by the principles of the common law, but by the ordinance of the 18th Oct., 1865, and the Acts of 1866, Chs. 38 and 39. The account must be divided, and the amount due Oct. 1st, 1861, must be estimated in par funds. To give full effect to the payments of the bank, and allow to the plaintiff, the proper value of his deposits, each payment ought to be deducted from the next preceding deposit or deposits, and when the deposits are in excess of the payments, a balance ought to be struck, and the value of such excess ought to be ascertained according to the scale, and form a part of the general balance due the plaintiff. In this way the nominal amount of the payments will be deducted from the nominal amount of the preceding deposits. The value of the excess of the various deposits at the time they were made with the premium added, will constitute the true balance in the Confederate currency transactions; and this sum added to the amount of the par funds due Oct. 1st, 1861, will constitute the amount due the plaintiff at the time of the demand made.
Where a bank, during the late civil war, adopted a new usage and custom with its customers, with regard to their deposits in Confederate currency, proof of it cannot be admitted to affect one who had been a regular customer before the war, and continued such during the war, unless it be shown that he had notice of the change in the ordinary usage and custom of the bank as to general deposits.
The fact that a regular customer sometimes made special deposits of bank bills with a bank, has no tendency to show that he had notice of chan??ge?? n?? ordinary usage and custom of the bank as to general deposits, for a special deposit constitutes a contract essentially different from that which arises by implication of law from a general deposit.
A special deposit is a naked bailment, and on demand of the bailor, restitution must be made of the thing deposited. And as the bank acquires no property in the thing deposited, and derives no benefit therefrom, it is bound only to keep the deposit with the same care that it keeps its own property of a like description.
The case of Brown v. Foust, 64 N. C. Rep. 672, cited and approved.
This was a civil action brought by the plaintiff to recover from the defendant the balance of a general deposit account kept between him and the branch bank of the defendant at Salisbury.
On the trial at the last Term of the Superior Court of the County of ROWAN before his Honor, Henry, J., it appeared that the plaintiff, in March, 1864, carried a notice, published by the defendant in the “Carolina Watchman,” for all its depositors to withdraw their deposits by a certain time, exhibited it to the Cashier, and demanded of him his deposit as it appeared on the bank book of the plaintiff, kept by an officer of the bank, and offered to check for the same. The Cashier offered to pay the plaintiff in Confederate money, and refused to pay in any other. The plaintiff offered to take payment in specie or bills of the defendant, which was refused. It was proved that the plaintiff, besides his general deposits of Confederate currency, sometimes made special deposits of bank notes in the bank. The defendant offered to prove what was the custom and usage of its branch at Salisbury, as to the re-payment of deposits made in Confederate currency to depositors, other than the plaintiff, for the purpose of showing that the undertaking of the defendant in regard to deposits of that character, was not that of a debtor to the depositor, but only as a bailee, and the fact of the plaintiff having sometimes made special deposits in bank notes was relied on for the same purpose. His Honor refused to admit the testimony in the absence of proof, that such usage and custom was known to the plaintiff.
The plaintiff offered in evidence, his bank book, kept by an officer of the bank, the debits and credits of which were admitted to be correct, and the general balance and final balance corresponded with the entries on the books of the bank, except as to the form of making the entries. The defendant offered to put in evidence the books of its branch at Salisbury, but it was objected to by the plaintiff and excluded by the Court.
The counsel for the defendant asked his Honor to charge the jury, that the charges in the debit side of the account current offered by the plaintiff, had to be appropriated in the discharge of the first items in the credit side of the account, continuing the appropriation or application in that way seriatim, until the debit side of the account was exhausted, then find the balance over the credits of which the balance consisted, and that the scale would be applicable to the last balance struck; to this his Honor replied that the plaintiff was entitled to receive back in good money, the value of any deposit made by him, and which might be still due and owing, as announced by the defendant himself, from time to time, by striking the balance on plaintiff's book, with premium added.
It was in evidence, that there was no Confederate money issued until Sept., 1861, and none deposited before 1st Oct., 1861??
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