Miller v. Bank of Holly Springs

• Decision Date: 12 February 1923
• Docket Number: 22862
• Court: Mississippi Supreme Court
• Parties: MILLER v. BANK OF HOLLY SPRINGS

95 So. 129

131 Miss. 55

MILLER v. BANK OF HOLLY SPRINGS

No. 22862

Supreme Court of Mississippi

February 12, 1923

1. BANKS AND BANKING. Bank held authorised to receive for safe-keeping valuables of its customers.

A bank whose charter confers the power on it "to receive on deposit in any sum not less than one dollar in value of gold or silver coin, bank notes, treasury notes, or other valuable thing," is authorized to receive for safe-keeping as special deposits valuables of its customers.

2 CONTRACTS. "Sufficient consideration" defined.

There is a "sufficient consideration" for a promise if there be any benefit to the promisor or any loss, detriment or inconvenience to the promisee, or if the person to whom the promise is made refrains from doing anything which he has the right to do, whether there be any actual loss to him or actual benefit to the party making the promise; and such consideration is sufficient, even though it be inadequate.

3. BANKS AND BANKING. Bank held liable for loss of customer's property, continued on deposit in consideration of removal from money vaults, in which bank failed.

In a case where a bank had on special deposit War Saving Stamps of one of its customers for safe-keeping which had been placed in the bank's vault instead of its safe, where its money was kept, and such customer, on learning from the public press that many banks in the country were being burglarized and United States War Saving Stamps and Liberty Bonds of their customers stolen therefrom, informed said bank that he desired to move said War Saving Stamps to another bank for safe-keeping, because he was afraid for said stamps to remain in its vault, and thereupon said bank agreed that if said depositor would permit his said stamps to remain with it they would be placed in its safe where its money was kept, which was burglar proof, which proposition said depositor accepted and said bank violated said agreement by permitting said stamps to remain in its vault, which was burglarized and said stamps stolen therefrom, while its safe where it kept its money was not, held, said agreement is a special and not a general contract of bailment, and based on a sufficient consideration, and therefore said bank is liable to said depositor for the loss suffered by him.

HON. W A. ROANE, Judge.

APPEAL from circuit court of Marshall county, HON. W. A. ROANE, Judge.

Action by John M. Miller against the Bank of Holly Springs. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Wells, Stevens & Jones, E. M. Smith, E. C. Wright and D. M. Featherston, for appellant.

As shown in the testimony appellant, after going to said bank for the avowed purpose of moving said stamps, desisted and refrained from moving said stamps and bonds to another place of safety deposit on the specific promise of the president of said bank that said stamps and bonds should and would be placed in their money safe. This special contract made and entered into at this time by the appellant and appellee to place these stamps in a specific place or receptacle is not denied anywhere in this record, and therefore must be accepted as an established fact. The court will note that the plea of general issue is a plea of not guilty which does not take issue to the making of said contract, nor does the special plea deny the special contract sued on in this case, or its breach; but whilst the testimony of appellee does not anywhere deny this agreement or contract, it pleads that the special agreement on its part is nudum pactum and that they are not bound by it. This position cannot be successfully maintained under the proof disclosed by this record. Appellant was a regular depositor and customer of this bank. He had gone there for the expressed and avowed purpose of removing his bonds and stamps to another bank because of his lack of confidence in the security of appellee's vault. Mr. Fort, the president of appellee's bank, was a skilled and experienced banker and knew that the removal of the bonds and stamps to another bank by this old customer and depositor, on the ground that appellee's vault was not safe, would create suspicion that appellee's bank was unsafe and insecure for the deposit of securities and other things of value, a reputation which no bank could bear and hold its customers, as perfect confidence is the very life and existence of a bank. So, this farsighted and careful banker immediately took steps to prevent the removal of these securities from appellee's bank to a competing banking institution, which he accomplished by entering into the contract with appellant to place the stamps in their money safe where, he stated, that it would take a burglar twenty-four hours to enter. This promise satisfied appellant and he desisted and forbore the removal of said stamps and bonds to the other bank. Will this court, under these facts, say that there was no consideration for this contract?

The case of Odineal, President of the Board of Supervisors, v. Richard Barry, et al., 24 Miss. 9, was a suit which arose under the following circumstances: It became necessary to build a new court house in the city of Columbus and a new site in a different locality was offered free if the county would build on this new site. Some persons who owned property near the old site, whose property would be depreciated by the removal of the court house to the new site, gave their note for two thousand dollars, provided the new building was erected on the old site. The new court house was erected on the old site and when sued upon this note the makers thereof pleaded want of consideration as one of their defenses. Justice YERGER in delivering the opinion of the court says:

"Was there sufficient consideration for the note? Judge STORY lays down the rule, 'that a sufficient consideration for a promissory note may consist either in some right, interest, profit, or benefit occurring to the parties to make the contract, or some forbearance, detriment, loss, responsibility, act, or labor on the other side,'" and upheld the validity of the note.

In the case of Byrne v. Cummings, 41 Miss. 192, Justice ELLETT in laying down the rule uses this language: "Any benefit to the party promising, by the act of the promisee, is a sufficient consideration, and it is not essential that there should be any adequacy in point of actual value, but a slight benefit will be sufficient."

"So, also, any loss, trouble or inconvenience sustained by the promisee, at the instance of the person making the promise, will be a good consideration, although such trouble, loss or obligation be of trifling description, provided it be not utterly worthless in law and fact; and although the person making the promise obtains no benefit or advantage from the performance of the stipulated act by the promisee." Magee v. Catchings, 33 Miss. 672; Turner & Co. v. Brown, 3 S. & M. 425. This same rule of law as to what constitutes a consideration is announced by the elementary writers on the subject. Lawson on Contracts (2 Ed.), section 98.

We do most earnestly insist that the forbearance of appellant to remove the stamps from the bank of appellee, which he went there to do and which he desisted from doing at the request of Mr. Fort, the president of the bank, on the specific promise that he would place these stamps and bonds in the money safe, was sufficient consideration to support the contract under the rule of law announced by our supreme court and the elementary writers.

In reply to the argument of appellee's counsel that the appellee's bank was not authorized by its charter and bylaws to receive special deposits like the ones in question, we desire, in addition to the authorities cited in the brief heretofore filed by appellant, to support the contention that, if a bank is in the habit as bailee of receiving special deposits either gratuitously or for hire, they become liable therefor under' the law, whether authorized so to do by their charter or not, to bring to the court's attention some of the proof in this record showing that it was the custom of the appellee bank to receive special deposits of bonds and war savings stamps and place them in their money safe or vault. We insist, however, that under the charter and by-laws ample authority was given the bank to receive such deposits. National Bank v. Graham, 100 U.S. 701-702; Patterson v. Syracuse Bank, 36 Am. Rep. 589-590; Trustees Elon College v. Banking & Trust Co., 109 S.E. 6.

The basis of this suit is the breach of the special contract made by the appellee with the appellant to place the stamps in a special receptacle, which was its money safe regardless as to whether they were negotiable or non-negotiable. The right of bailee and bailor to restrict or enlarge liability under the law has been fully discussed in appellant's former brief, and we will not further consider or pursue this further in this rejoinder brief, except to cite the case of Trustees of Elon College v. Elon Banking & Trust Company, in 109 S.E. supra; McCutchen v. Rice, 56 Miss. 456-461; Love et al. v. Stone, 56 Miss. 449; Turpentine Co. v. Calamity Land Co., 109 Miss. 633; Land & Carter Hardware Co. v. Carberry, 114 Miss. 525.

We have not the opportunity nor the library to examine all the authorities cited by opposing counsel in his brief, but we have examined carefully the authorities cited from our state, and, if the authorities cited from other courts are not more applicable to the case at bar than those from our own state, we feel that there is little comfort in them for the appellee. We fail to find the case of State v Commercial Bank, in 68 Miss. 218, cited by appellee, and therefore cannot say whether the said case is applicable to the case...