Fells Point Sav. Inst. v. Weedon

• Decision Date: 04 June 1862
• Parties: FELLS POINT SAVINGS INSTITUTION OF BALTIMORE, v. JAMES C. WEEDON, Adm'r of GEORGE F. ALLEN.
• Court: Maryland Court of Appeals

18 Md. 320

FELLS POINT SAVINGS INSTITUTION OF BALTIMORE, v. JAMES C. WEEDON, Adm'r of GEORGE F. ALLEN.

Court of Appeals of Maryland.

June 4, 1862

Limitations on a promissory note, payable on demand, run from its date, and not from the time of demand, but, on a certificate of deposit, payable, with interest, on demand on return of the same, only from the time of demand actually made.

A certificate of deposit in a savings bank, payable to the depositor, or order, on demand, and on return thereof, is a negotiable instrument, and on demand of payment the bank has the right to insist, that the certificate shall be produced and delivered up, as its voucher of payment, and security against any future claim.

Where the administrator of the depositor, in such a case, sues the bank, at law, for the deposit, and the certificate is shown to be in the possession of a third party, and there is no proof that the depositor did not endorse it in his lifetime the plaintiff cannot recover without producing the certificate.

Where a party is called on to pay a lost negotiable bill or note, the loss and consequent non-production, constitute a good defence at law.

Where from the character, or want of negotiability, of the instrument, at the time of loss, the debtor can set up any equitable defence against a subsequent bona fide holder, claiming through the finder, a court of law may exercise jurisdiction, but in all other cases the only remedy is in equity.

A prayer, that the plaintiff is not entitled to recover upon the pleadings and evidence in the cause, is too general in its terms since the Act of 1825, ch. 117.

A prayer, that if the jury find " that the fund deposited " is still in bank, and that proper letters of administration have been taken out and granted to the plaintiff," & c., is defective in assuming the fact of deposit, and in leaving to the jury a question of law.

Where an instruction is granted by the court, after rejecting the prayers offered by counsel, it is defective, unless it declares the law upon the points raised by the counsel, in terms explicit and intelligible to the jury.

APPEAL from the Superior Court of Baltimore City.

Action brought April 2nd, 1858, by the appellee against the appellant, to recover $500 with interest, which sum was deposited in the Savings Institution by the plaintiff's intestate. At the time of the deposit a certificate in the following form was issued and delivered to him therefor:--

" $500. BALTIMORE, May 19th, 1854.

George F. Allen has deposited in the Fells Point Savings Institution of Baltimore, the sum of five hundred dollars, which sum, with interest at the rate of three per cent. per annum, will be paid to him or to his order on demand, and on returning this certificate. "

Several exceptions were taken at the trial, but by an agreement filed in this court, it was " agreed to try this cause as if issues had been regularly and properly joined in the court below:--all mere formal defects in reference to pleadings and evidence, are hereby waived: the object is to determine by this appeal the question, whether the appellee, as administrator, is entitled to recover the amount deposited in the hands of the defendant by Allen, without actual production of the certificate at the trial of the case."

The evidence shows that letters of administration on Allen's estate, were granted to the plaintiff, May 4th, 1855, by the orphans court for Baltimore city; that Allen was reported to be dead, and a merchant of New York city addressed a letter to the treasurer of the defendant, stating, that he was in possession of Allen's effects and of this certificate of deposit, but did not say he had taken out letters of administration nor pretend that the certificate was endorsed or assigned; that after grant of his letters, the plaintiff made demand on the defendant for payment, acknowledging that he was not in possession of the certificate, and the defendant refused payment unless the certificate was produced, and refused all applications for payment, because none of the parties making them were in possession of letters of administration and of the certificate; that a party from New York city demanded payment, representing himself as administrator of Allen, and exhibiting documentary evidence of his appointment by a court of that State, but this demand was refused, because the claimant was not, and admitted he never had been, in possession of the certificate; that the money had never been paid, and the defendant admitted itself indebted for the same, and was ready and willing to pay to any person who could show himself entitled by law to receive it, and who was competent to give therefor a valid release and acquittance; that Allen had never made a personal application for the money, and was reported to have died at sea, but the date of his death is unknown. The defendant asked several instructions in substance as follows:--

1st. If the jury find that Allen made the deposit on the 19th of May 1854, and received a certificate therefor on that day, in the form stated in the evidence, and that such certificate was then issued and delivered to him by the defendant, then the plaintiff's remedy is barred by limitations.

2nd. If the jury find the facts stated in the preceding prayer, and that said certificate has not been lost or destroyed, but is now held by another person than the plaintiff, then he is not entitled to recover.

3rd. If the jury find the facts stated in the preceding prayers then the plaintiff is not entitled to recover without producing said certificate to be cancelled.

4th. That the plaintiff is not entitled to recover upon the pleadings and evidence in the cause.

The court (LEE, J.) refused these instructions as prayed, and instructed the jury, that if they shall find from the evidence in this cause, that the plaintiff's intestate is dead, and that the fund deposited in his lifetime in the Fells Point Savings Institution of Baltimore, is still deposited there, and that no claimant or personal representative of the intestate Allen has, since May 1854, produced the certificate to the said savings institution as either received amongst his effects or held by endorsement, and shall further find that proper letters of administration have been taken out and granted to the plaintiff in this case, then he is entitled to recover as administrator of said Allen.

The defendant excepted to the refusal of its prayers, and to the instruction granted by the court, and the verdict and judgment being against it, appealed.

The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.

Jas. Malcolm and C. L. L. Leary, for the appellant.

1st. The appellee's claim is barred by limitations:--the certificate is payable on demand, and limitations began to run from its date. 7 H. & J., 14, Ruff vs. Bull. 9 Pick., 490, Little vs. Blunt. 13 Wend., 267, Wenman vs. Mohawk Ins. Co.

2nd. The evidence shows that the certificate is in existence and in the possession of a third person, who is therefore prima facie, entitled to the fund. 4 Ind., 522, Bush vs. Seaton. The court will therefore protect the defendant against the danger of being compelled to make more than one payment of the same debt, by requiring the plaintiff to produce the certificate or account for its non-production. This is the established rule, applicable to the negotiable notes and bills in the ordinary form. Story on Prom. Notes, secs. 106, 107, 108, 445, 446, 448. 7 Barn. & Cress., 90, Hansard vs. Robinson. 3 Cowen, 303, Rowley vs. Ball. 2 Hill, 482, Smith vs. Rockwell. 3 Wend., 344, McNair vs. Gilbert. 2 G. & J., 508, Glenn vs. Smith. 10 Johns., 104, Pintard vs. Tackington. That the certificate in question is a negotiable instrument, see 14 Conn., 363, Kilgore vs. Bulkley. 2 Hill, 295, Bank of Orleans vs. Merrill. 13 How., 218, Miller vs. Austen. But even if it be non-negotiable, still it is a written contract between the payee and the defendant, subject to the ordinary rules of construction, and as the return of the certificate is expressly stipulated in the contract, as a condition precedent to the payment of the fund, the plaintiff's right to recover is dependent upon its production. 5 Duer, 69, Warhus vs. Bowery Savings Bank. If these views are correct, the appellant's second and third prayers should have been granted.

3rd. The instruction given by the court is manifestly erroneous not only as in conflict with the views above expressed, but for assuming the fact of the deposit of the money; for being confused, uncertain, and calculated to mislead the jury; and by leaving it to them, to find whether proper letters of administration had been granted to ...