Girard Bank v. Bank of Penn Tp.

• Decision Date: 06 May 1861
• Citation: 39 Pa. 92
• Parties: The Girard Bank v. The Bank of Penn Township.
• Court: Pennsylvania Supreme Court

39 Pa. 92

The Girard Bank v. The Bank of Penn Township.

Supreme Court of Pennsylvania.

May 6, 1861

1861

ERROR to the District Court of Philadelphia.

This was an action of assumpsit, brought September 3d 1859, by the Girard Bank in the city of Philadelphia, against the Bank of Penn Township, to recover the amount of a check for $1150 with interest, which had been drawn on the Bank of Penn Township, marked " good" by the proper officer of the bank, and endorsed to the Girard Bank by the holder. The case was this:--

Adam Dietrich drew his check, dated September 30th 1852, payable October 7th 1852, on the Bank of Penn Township, on his deposit with them, to the order of C. S. Grube, for $1150 which check was duly endorsed to the Girard Bank, and marked " good" by the Bank of Penn Township.

The Girard Bank having mislaid this check among the returned checks of a depositor, lost it until some time in 1859, when its presentation for payment to the Bank of Penn Township led to its discovery by the Girard Bank; who, on application to the Bank of Penn Township, for the first time learned that the Bank of Penn Township had, without notice to them, paid it to Adam Dietrich, October 12th 1854, on his duplicate check and taken the following bond, viz.:--

Know all men by these presents, that we, Adam Dietrich, Thomas Grosh (farmer), John Eshleman (miller), and John Hoffman (drover), all of Lancaster county, Pennsylvania, are held and firmly bound unto the Bank of Penn Township, in the county of Philadelphia, in the sum of two thousand three hundred dollars, lawful money of the United States of America, to be paid to the said The Bank of Penn Township, their certain attorney, successors, or assigns. To which payment well and truly to be made, we do bind ourselves jointly and severally our and each of our heirs, executors, and administrators firmly by these presents. Sealed with our seals, and dated 9th day of October, in the year of our Lord one thousand eight hundred and fifty-four (1854).

The condition of this obligation is such, that whereas the above bounden Adam Dietrich, on or about the 8th day of November A. D. 1852, drew his draft or check on the Bank of Penn Township aforesaid, for eleven hundred and fifty dollars which was marked " good" by the said bank, which said draft or check has since been lost or mislaid, and the said Adam has applied to the said bank to pay a duplicate draft or check of the same amount and date to him, which the said bank have agreed to pay, upon being fully indemnified therefor. Now, if the said Adam Dietrich shall deliver up to the said bank the said draft or check when it shall be found, and until the said lost draft or check shall be so delivered up, shall and do save, defend, keep harmless, and indemnify the said bank and its successors, and their goods and chattels, lands and tenements, of and from the said lost draft or check, and of and from all actions, suits, payments, costs, charges, and damages for or by reason thereof, then this obligation to be void, otherwise to remain in full force.

On the 3d of September 1859, a copy of the check was filed by plaintiffs, which was met by an affidavit of defence. On the 6th of October, the plaintiffs entered a rule for judgment for want of a sufficient affidavit, which, on hearing, was discharged. On the 3d of December 1859, the plaintiffs' declaration was filed, containing twelve counts, viz.: the first and second by endorsee on an accepted draft or check; the third and fifth by endorsee on an accepted bill of exchange; fourth and sixth specially on a deposit, setting forth at length the making of the check, the endorsing to plaintiffs, and the marking " good" by defendant, whereby it was averred the defendants became the depositees of the plaintiffs. The seventh was a count generally on a deposit, to which were added the common counts for money lent, paid, had and received, interest, and on an account stated.

The defendants pleaded non assumpsit, non assumpsit infra sex annos, and to the fourth and sixth counts, actio non accrevit infra sex annos: and on the issues thus made up the parties went to trial.

The learned judge below directed a verdict in favour of plaintiffs for principal and interest, subject to the opinion of the court in banc, whether, upon the evidence and the pleas of the Statute of Limitations, the plaintiffs were entitled to recover.

The court in banc afterwards ordered judgment to be entered for defendants, non obstante veredicto, whereupon the plaintiffs sued out this writ, and assigned for error the following matters, to wit:--

The court below erred:--

1. In giving judgment for the defendants on the question reserved, whether the plaintiffs' claim was barred by the Statute of Limitations, and of their right to recover on the whole case in point of law.

2. In not giving judgment for the plaintiffs thereon.

3. In deciding that the holder of a check on a deposit in bank, marked " good" by the bank, loses his right thereon against the bank, by not making a demand thereon within six years from the time of such certification.

4. In not deciding that the Statute of Limitations does not run in favour of the bank, against the holder of such a certified check.

5. In not deciding that the payment of the certified check on the duplicate check and bond under the circumstances, and the representations in the bond, being made within six years of demand and suit, were an acknowledgment by the bank of a right in the holder of the certified check that would avoid the Statute of Limitations.

6. In not deciding that the payment of the certified check on the duplicate check and bond, under the circumstances, and the representations in the bond, being made within six years of the time of the demand and suit, were an acknowledgment by the bank of a right in the holder of the certified check that would make such demand and suit sufficient and within time to sustain such right.

George L. Crawford and B. H. Brewster, for plaintiffs in error.--The defence in this case--lapse of time in making demand and bringing suit on the plaintiffs' claim--is strictly technical. It has not the meritorious foundation of the Statute of Limitations and analogous defences arising from lapse of time, viz., a presumed loss of evidence of a meritorious defence--for none is pretended here. And the enforcement of the plaintiffs' claim vitalizes for the defendants a security for their repayment by the party to whom they improperly paid the claim on that security, which security is worthless to rectify the wrong, except upon an enforcement of the plaintiffs' claim.

Has the lapse of time in making demand and bringing suit barred the plaintiffs' claim?

I. A subsisting continuing trust is not barred by lapse of time: Story on Equity, vol. 2, § 1520, a; Kane v. Bloodgood, 7 John. Ch. 90; Cholmondeley v. Clinton, 2 Merivale 93; Johnston v. Humphreys, 14 S. & R. 394; App v. Driesbach, 2 Rawle 287; Lyon v. Marclay, 1 Watts 271; Finney v. Cochran, 1 W. & S. 112; Zacharias v. Zacharias, 11 Harris 452; and Heckert's Appeal, 12 Harris 482.

It is the character of the trust as a continuing and subsisting one, and not the forum, or form of the proceeding, viz.: in a court of law or equity, that tests the rule: Thompson v. McGaw, 2 Watts 163; Heckert's Appeal, 12 Harris 486.

Dividends of stock corporations, until demand and refusal, are such trusts: Kane v. Bloodgood, 7 John. Ch. 90; Philadelphia and Wilmington Railroad Co. v. Cowell, 4 Casey 329, 339. A deposit of money for a special purpose was recognised as such a trust in Johnston v. Humphreys, 14 S. & R. 394; affirmed in Zacharias v. Zacharias, 11 Harris 452; and a bank deposit, until demand and refusal, is such a trust: Fogarties v. The State Bank, Am. L. Reg., May 1860, p. 393. If a check be accepted, by marking good or otherwise, by the bank, it is indisputably an assignment of the fund: Gibson v. Cooke, 20 Pick. 15; Brown's Case, 2 Story 502.

In New York, where certification is in more common use, and its legal and commercial character more accurately defined, the relation between a bank and holder of a certified check was decided in Willets v. The Phœ nix Bank, 2 Duer 121, which was a suit by the holder of a certified check against a bank, who had subsequently repaid the deposit to the original depositor, and defended on the ground of laches of the holder in demanding payment. The court denied the validity of such defence. This was affirmed in a similar case, Farmers' and Mechanics' Bank v. Butchers' and Drovers' Bank, 4 Duer 219.

The Act of March 6th 1847, §§ 1, 2, 3, 4, 5, Brightly's Purd., pp. 87, 88, requiring banks, & c., to publish any dividends, profits, deposits, or balances in their hands, unclaimed for three years, which, if unclaimed for three years longer, are to escheat to the Commonwealth, subject to the owner's right of reclamation from the state treasurer at any time afterwards, is confirmatory of the plaintiffs' right against the Statute of Limitations; and banks can be relieved from responsibility only by complying with its provisions.

The payment by the defendants of the check to the drawer on the duplicate check and bond under the circumstances and representations iu the bond, within six years of demand and suit, were an acknowledgment that the relation between the defendants and holder of the certified check then existed. Such acknowledgments are distinguishable from acknowledgments of indebtedness to avoid the Statute of Limitations Johnston v. Humphreys, 14 S. & R. 394; and Zacharias v. Zacharias, 11 Harris 452; and need not be made to the plaintiff or his agent, being admissions as evidence of a then subsisting fact, and not foundations for an implied promise: Clark...