Long v. Straus

• Decision Date: 19 June 1886
• Docket Number: 12,429
• Citation: 7 N.E. 763,107 Ind. 94
• Parties: Long, Executrix, v. Straus et al
• Court: Indiana Supreme Court

7 N.E. 763

107 Ind. 94

Long, Executrix, v. Straus et al

No. 12,429

Supreme Court of Indiana

June 19, 1886

Original Opinion of March 31, 1886, Reported at: 107 Ind. 94.

OPINION

Elliott, J.

The instrument declared on is a contract. It is a written contract. It can not be contradicted or varied by parol evidence. The law enters into it as a silent factor, and the obligation implied by law from the language employed is as much part of the contract as though what the law implies had been fully expressed in words.

Where there is an express contract there can be no implied one. An express written contract contains the only competent evidence of the agreement of the parties. There is here an express written contract, and, therefore, there is no implied one. But this written contract is to be given legal effect, and to give it effect the courts must consider it as embodying all the legal obligations implied from its language. These obligations, we repeat, are part of the written contract. The law imported into the contract does not create an independent agreement, but makes the instrument express the full agreement of the parties.

All the words found in a contract are to have a meaning attributed to them, and are not to be thrust aside. We can not, therefore, disregard the words found in the contract before us, "on deposit, in National currency." We know that the words "National currency" denote money, and we know, therefore, that those words, taken in connection with the words "on deposit," mean that the appellees had received a deposit in money from the appellant's testator. Phelps v. Town, 14 Mich. 374. We know, also, that the law as a factor is an essential part of the contract, and it seems very plain to us that the express agreement of the parties, considered in conjunction with this factor, imports a contract to repay the deposit on demand. Suppose the appellees to have attempted to show by parol that they were not to repay this money, would not the attempt be defeated by the proposition that such a contract can not be varied by parol evidence? Of this there can be no doubt. Tisloe v. Graeter, 1 Blackf. 353; Hull v. Butler, 7 Ind. 267; Jones v. Clark, 9 Ind. 341; Pribble v. Kent, 10 Ind. 325, vide p. 328; Henry v. Henry, 11 Ind. 236; McKernan v. Mayhew, 21 Ind. 291; Foulks v. Falls, 91 Ind. 315.

All contracts have imported into them legal principles which can no more be varied by parol evidence than the strongest and clearest express stipulations. We have already given one example, that of the days of grace added by force of law to a promissory note. A more striking example, perhaps, is that supplied by the contract of endorsement, for, in such cases although not a word more than the name of the endorser is written, the contract which the law implies can not be varied by parol. The authorities all agree that the regular endorsement of a promissory note is as perfect a contract as though the liability which the law implies were written out in full. Smythe v. Scott, 106 Ind. 245, 6 N.E. 145. In contracts under seal, as deeds, leases, and the like, covenants are engrafted into the agreement of the parties by operation of law, and, indeed, into every conceivable contract the law enters as an essential element. Into the contract before us the law enters and makes it an agreement to repay the money received on deposit. As the contract is a written one, not subject to variation by parol evidence, the agreement to repay the money must exist in it or not exist at all, and surely no just man would assert that one who receives money on deposit, and so states in a written contract, does not undertake to repay it If he undertakes at all he does so by his written contract, for there is and there can be no other contract, as all oral negotiations and stipulations are merged in the writing. That, and that alone, expresses the agreement of the parties. Oiler v. Gard, 23 Ind. 212; Cincinnati, etc., R. R. Co. v. Pearce, 28 Ind. 502, vide p. 506. The law implies a promise to pay the depositor his money, and where there is a written contract the law conducts this implied promise into the contract as one of its elements, so that the entire contract is a written one. Where there is an effective written contract there can be no verbal one. Board, etc., v. Shipley, 77 Ind. 553; Pulse v. Miller, 81 Ind. 190. As there is here a written contract into which the law imports a promise to pay, the statute of limitations governing written contracts to pay money is the only one that applies. We thus find that, reasoning on elementary principles, the conclusion must be that the contract is a written one for the payment of money.

Our conclusion reaches further than that there is an implied promise to pay the depositor his money, for it goes to the extent of affirming that this promise is created by law as an element of the contract, and as such enters into and forms part of the written agreement. We do not regard the promise as an independent one, existing outside of the written contract, but as a promise forming one of the terms of the contract. In short, we look upon it as a part of the contract, put there by law, for the parties are presumed to have contracted with reference to the law. The principle on which we proceed is thus stated by Mr. Bishop: "What is implied in an express contract is as much a part of it as what is expressed." Bishop Cont., section 121. On this subject the Supreme Court of the United States said: "Undoubtedly necessary implication is as much part of an instrument as if that which is so implied was plainly expressed." Hudson Canal Co. v. Pennsylvania Coal Co., 8 Wall. 276, 19 L.Ed. 349, vide, p. 288.

We maintained in our former opinion, as we maintain here, that the law implies a promise to pay back to the depositor his money, and that where there is a written contract stipulating that money has been received on deposit, that promise is an essential part of the written contract itself. It is a promise in the written instrument, and not outside of it. "The acknowledgment of indebtedness on its face implies a promise to pay to the plaintiffs," said the court in Kimball v. Huntington, 10 Wend. 675. So we say here, an acknowledgment that the money was received on deposit implies a promise to pay it to the depositor, and we hold, as was held in the case cited, that this promise is implied by law as an obligation arising from the language of the contract, thus forming one of its terms. As there is an express contract, and as the promise forms part of the contract, it is a contract for the payment of money or else it is no contract at all. Once it is granted that the promise to pay back the depositor his money is created by law, then it follows with absolute logical certainty that the promise is as much part of the written instrument as though it were written therein in express words.

The authorities which bear most directly upon the question lead to the conclusion at which we have arrived. We find an able court saying: "Money on deposit means, ex vi termini, money placed where the owner can command it at any time." Curtis v. Leavitt, 15 N.Y 9, vide p. 265. In giving effect to an instrument similar in all material respects to the one before us, that court in a very recent case said: "Being a deposit a demand of the money was essential to a right of action, unless there was a wrongful conversion or loss by some gross negligence on the part of the depositary. The distinction between a deposit and a loan is considered in Payne v. Gardiner, 29 N.Y. 146, and within the rule there laid down the instrument in question was a certificate of deposit." Smiley v. Fry, 100 N.Y. 262, 3 N.E. 186. We referred to Smiley v. Fry, as declaring such an instrument to be in the nature of a certificate of deposit, and in this we are, as the quotation we have made shows, sustained by the latest expression upon the question. At another place in the opinion from which we have quoted it is said: "As the instrument in question was not a promissory note but a certificate of deposit, the defence of the statute of limitations, interposed by the defendant, was not available." It is perhaps true that the decision in Hotchkiss v. Mosher, 48 N.Y. 478, is in conflict with the views we have expressed, for it holds, as we understand it, that a certificate of deposit may be contradicted by parol evidence, as the court says: "We are of the opinion that parol evidence was admissible to explain the certificate in the same manner as in the case of a receipt." This ruling is in conflict with our own cases and with the cases in New York and elsewhere, and can not be accepted as the law. The case is not a well considered one, for no authorities are cited in support of the conclusion announced. It is held by many courts, including our own, that an order for property, accompanied by a direction to charge its value to an owner, is a written contract, containing a promise to pay its value. Garmire v. State, 104 Ind. 444, 4 N.E. 54; United States v. Book, 2 Cranch C.C. 294, 24 F. Cas. 1202; United States v. Brown, 3 Cranch C.C. 268, 24 F. Cas. 1246; State v....