Cassidy v. First National Bank of Faribault

• Decision Date: 16 December 1882
• Citation: 14 N.W. 363,30 Minn. 86
• Parties: Ann Cassidy v. First National Bank of Faribault
• Court: Minnesota Supreme Court

14 N.W. 363

30 Minn. 86

Ann Cassidy v. First National Bank of Faribault

Supreme Court of Minnesota

December 16, 1882

Plaintiff, claiming to be the owner of a certificate of deposit issued by defendant, payable to the order of her husband, Jerry Cassidy, presented the same to defendant for payment, which was refused because it was not indorsed by the payee. Thereupon plaintiff brought this action on the certificate, as on a promissory note. A jury was waived, and the action tried in the district court for Rice county before Buckham, J., and judgment rendered for plaintiff, from which defendant appeals.

Judgment for the plaintiff was properly ordered and entered below, and is accordingly affirmed.

Geo. N Baxter, for appellant.

J. H. Case, for respondent.

OPINION

Berry, J. ^[*]

The defendant issued the following instrument, signed by its president:

"First National Bank,

"Faribault, Minn., June 1, 1880.

"Jerry Cassidy, Esq., has deposited in this bank $ 1,050, payable to himself or order, in current funds, on the return of this certificate properly indorsed."

The money deposited was the property of plaintiff, by whom it was handed to Jerry Cassidy, her husband, to be deposited in the defendant bank in his or her name, as he saw fit. Immediately upon receiving the certificate he delivered it to plaintiff, who ever since has had its exclusive possession and control, and has been the real owner of the debt evidenced by it. Before the commencement of this action she presented the certificate to defendant, and demanded payment of the balance due thereon, at the same time informing defendant that she was its lawful owner and holder, and offering to surrender it upon payment. Defendant refused payment, upon the ground that the certificate had not been indorsed, and was claimed by Jerry Cassidy as his own. In fact it has not been indorsed.

The certificate is in effect a negotiable promissory note. Pardee v. Fish, 60 N.Y. 265; Klauber v. Biggerstaff, 47 Wis. 551, 3 N.W 357. The fact that the sum named in it is payable "on the return" of the certificate does not raise a contingency affecting its character as such note. In the absence of these words, the duty to return upon payment would be implied, as in case of a negotiable promissory note in common form. Notwithstanding it is made payable to the depositor or his order, a third person may become its owner without indorsement. This is, in effect, determined in Pease v. Rush, 2 Minn. 89, (107.) In that case the title of a note made payable "to the order" of certain persons named was held to pass by delivery without the indorsement of the persons to whose order it was payable. That case also determined that the party acquiring title by such delivery without indorsement was the real party in interest, who was, therefore,...