First Nat. Bank v. Capps
| Decision Date | 04 May 1922 |
| Docket Number | 4 Div. 958. |
| Citation | 94 So. 112,208 Ala. 235 |
| Parties | FIRST NAT. BANK OF ABBEVILLE v. CAPPS. |
| Court | Alabama Supreme Court |
Rehearing Denied Oct. 12, 1922.
Appeal from Circuit Court, Henry County; H. A. Pearce, Judge.
Action by J. T. Capps, as executor, against the First National Bank of Abbeville. From a judgment for plaintiff, defendant appeals. Affirmed.
Lee & Tompkins and T. M. Espy, all of Dothan, R. W. Miller, of Abbeville, and Steiner, Crum & Weil, of Montgomery, for appellant.
W. O Mulkey, of Geneva, Reid & Doster, of Dothan, and W. O. Long of Abbeville, for appellee.
J. T. Capps, as executor of the estate of M. V. Capps, deceased, sues the First National Bank of Abbeville, a corporation, for $61,112 due from defendant to plaintiff's intestate by this instrument:
Plaintiff avers also in the first count that it is due and, "although demand has been made for the payment thereof, still remains unpaid." Count 2 claims of the defendant the same sum for money loaned by plaintiff's testator to the defendant on April 21, 1920, due and payable April 21, 1921, with interest, and avers it is still unpaid, although payment has been demanded and refused before this suit was filed, and that this loan was made upon the certificate set out in count 1. Demurrers of the defendant to each count of the complaint were overruled by the court, and these rulings of the court are assigned as errors by the defendant.
This instrument sued on was in form a certificate of deposit issued by the defendant, a bank, to plaintiff's testator, promising to pay the certain amount deposited, viz. $61,112, on a certain day, 12 months after date-dated April 21, 1920, due April 21, 1921, with interest from date. This instrument in legal effect was a negotiable promissory note made by the defendant for money loaned, payable to plaintiff's testator, from whom the money was borrowed.
This court in Elmore County Bank v. Avant, 189 Ala. 425, 66 So. 511, wrote:
In Renfro Bros. v. Merchants' & Mechanics' Bank, 83 Ala. 427, 3 So. 776, this court said:
"Though there are respectable authorities holding otherwise, it may be regarded as supported by the great weight of authority, that a certificate of deposit, possessing the essential elements-an acknowledgment of a present debt and a promise to pay-is, in legal effect and operation, a promissory note."
The suit was commenced on May 26, 1921, after the maturity of the instrument; each count avers a demand for its payment was made and payment was refused. The averments of a demand and refusal to pay in the complaint before the suit was commenced were not essential under this instrument. The commencement of the suit on it was a sufficient demand for its payment. Talladega Ins. Co. v. Woodward, 44 Ala. 287.
These words in this instrument: "Payable to the order of M. V Capps on the return of this certificate properly indorsed," did not require the plaintiff to aver and prove that before suit was commenced the instrument was returned and indorsed by M. V. Capps or his executor and presented to the bank. This was not necessary. The instrument is in the hands of the original payee's executor. This writing being in effect a promissory note, in...
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