Citizens' State Bank of Petersburg v. Worden, 17,426.

• Court: Supreme Court of Nebraska
• Citation: 95 Neb. 53,144 N.W. 1064
• Docket Number: No. 17,426.,17,426.
• Parties: CITIZENS' STATE BANK OF PETERSBURG v. WORDEN.
• Decision Date: 07 January 1914

95 Neb. 53
144 N.W. 1064

CITIZENS' STATE BANK OF PETERSBURG
v.
WORDEN.

No. 17,426.

Supreme Court of Nebraska.

Jan. 7, 1914.

[144 N.W. 1064]

Syllabus by the Court.

Where the nature of a bank deposit is not shown, the law will presume that it is a general one.

A general deposit creates between the bank and the depositor the relation of debtor and creditor.

Under a general deposit, the title to the identical money deposited passes to the bank.

A bank is not required to return identical funds deposited subject to check, but discharges its obligation as debtor by returning the equivalent in money upon demand.

For nonpayment of a general deposit, a solvent bank is not in default, or guilty of conversion, or justly required to defend a civil action, until a demand for the deposit has been made, or waived, or shown to be unnecessary.

In an answer pleading a set-off for bank deposits, a general allegation that the bank converted the deposits to its own use must yield to specific allegations showing that a demand was necessary, but not made.

“A claim on the part of a defendant, which he will be entitled to set off against the claim of a plaintiff against him, must be one upon which he could, at the date of the commencement of the suit, have maintained an action on his part against the plaintiff.” Simpson v. Jennings, 15 Neb. 671, 19 N. W. 473.

In pleading a set-off in an action on a note, defendant should conform to the rules by which the sufficiency of plaintiff's petition would be tested, if assailed by demurrer.

In an action on a promissory note, a general denial by plaintiff in reply to a set-off pleaded in the answer does not waive the objection that defendant's plea fails to state facts sufficient to constitute a cause of action.

The objection that a set-off pleaded in an answer does not state facts sufficient to constitute a cause of action may be raised at any stage in the proceeding.

Appeal from District Court, Boone County; Thomas, Judge.

Action by the Citizens' State Bank of Petersburg against S. D. Worden. From a judgment for plaintiff, defendant appeals. Affirmed.

[144 N.W. 1065]

H. C. Vail, F. A. Doten, and F. D. Williams, all of Albion, for appellant.

A. E. Garten, of Albion, and M. B. Foster, of Madison, for appellee.

ROSE, J.

This is an action to recover a balance of $1,678.16 on five promissory notes. Defendant is maker, and the Citizens' State Bank of Petersburg, plaintiff, is payee. The suit was commenced February 4, 1911. An amended answer was filed June 5, 1911. It contains a general denial, alleges that defendant was a depositor of plaintiff, with an unclosed bank account, and demands judgment for deposits, and for conversion of deposits. The reply was a general denial. The case was tried to a jury. The execution and delivery of the notes were proved without contradiction. A demurrer to evidence in support of the cross-demands of defendant was interposed, on the ground that his allegations do not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer, and directed a verdict in favor of plaintiff for $1,754.94. Defendant appeals.

Did the trial court err in sustaining the demurrer? Defendant's position below and on appeal is indicated by the following extract from his brief: “The ruling of the court was made for the reason that the amended answer and cross-demand of defendant did not plead a demand made by him upon plaintiff for the amount claimed before the filing of the petition. Defendant concedes the general rule to be that, before an action can be maintained to recover amount of deposits, a demand is a condition precedent to a recovery; but the general rule cannot be applied under the issues of the case at bar, for the reason that defendant pleaded that plaintiff converted to its own use certain amounts of money deposited in plaintiff's bank, and prayed for a judgment against plaintiff for the amounts alleged to have been wrongfully converted to its own use, and plaintiff filed a reply denying all liability. An issuable fact was presented for adjudication, and demand became unnecessary. If plaintiff's reply had admitted receiving the amounts of the notes set forth in defendant's answer, and that it was indebted to defendant for the same, then, in the absence of a demand having been alleged and proved by defendant, the defendant could not maintain his cross-demand against plaintiff, and the ruling of the court would have been correct; but it is absurd to say that plaintiff could come into court and deny owing defendant anything, and at the same time nonsuit defendant for failing to allege and prove a demand made on plaintiff prior to filing of the petition.”

[1][2][3][4][5] Where the nature of a bank deposit is not shown, the law will presume that it is a general one. Nichols v. State, 46 Neb. 715, 65 N. W. 774. A general deposit creates between the bank and the depositor the relation of debtor and creditor. State v. Bartley, 39 Neb. 353, 58 N. W. 172, 23 L. R. A. 67;Nehawka Bank v. Ingersoll, 2 Neb. (Unof.) 617, 89 N. W. 618. Under a general deposit, the title to the identical money deposited passes to the bank. Seward County v. Cattle, 14 Neb. 144, 15 N. W. 337. A bank is not required to return identical funds deposited subject to check, but discharges its obligation as debtor by returning the equivalent in money upon demand. Union Savings Bank & Trust Co. v. Indianapolis Lounge Co., 20 Ind. App. 325, 47 N. E. 846. For nonpayment of a general deposit, a solvent bank is not in default, or guilty of conversion, or justly required to defend a civil action, until a demand for the deposit has been made, or waived, or shown to be unnecessary. Citizens' Bank v. Fromholz, 64 Neb. 284, 89 N. W. 775;Sharp v. Citizens' Bank, 70 Neb. 758, 98 N. W. 50;De Lucia v. Cellilo (Sup.) 123 N. Y. Supp. 229;Wasserstrom v. Public Bank...