Mitchell v. Easton

• Court: Minnesota Supreme Court
• Writing for the Court: Vanderburgh, J.
• Citation: Mitchell v. Easton, 37 Minn. 335, 33 N. W. 910 (Minn. 1887)
• Decision Date: 29 July 1887
• Parties: L. S. Mitchell v. J. C. Easton, impleaded, etc

33 N.W. 910

37 Minn. 335

L. S. Mitchell v. J. C. Easton, impleaded, etc

Supreme Court of Minnesota

July 29, 1887

The plaintiff brought this action in the district court for Mower county, against the defendants as surviving partners of the banking firm of Smith, Wilkins & Easton, upon a certificate of deposit in the following form, viz.:

"Mower County Bank, Austin, Minn., March 29, 1876.

"L S. Mitchell, Esq., has deposited in this bank seven hundred fifty and no-100 dollars, payable to the order of himself, in current bank notes, on the return of this certificate properly indorsed, with interest at the rate of ten per cent per annum.

"Smith Wilkins & Easton."

Certain payments upon this certificate were admitted, the last having been made on May 4, 1878. This action was brought in July 1886. The defendant J. C. Easton answered, pleading, among other defences, the statute of limitations. The action was tried before Farmer, J., without a jury, and judgment was directed for plaintiff. Defendant Easton appeals from the judgment.

Judgment reversed.

Kingsley & Shepherd, for appellant.

Lafayette French, for respondent, cited Branch v. Dawson, 33 Minn. 399; Riddle v. First Nat. Bk., 27 F. 503; Nat. Bank v. Washington Co. Nat. Bk., 5 Hun, 605; Howell v. Adams, 68 N.Y. 314; Boughton v. Flint, 74 N.Y. 476, 482; Munger v. Albany Bank, 85 N.Y. 580; Smiley v. Fry, 100 N.Y. 262; Brown v. McElroy, 52 Ind. 404; Girard Bk. v. Bk. of Penn. Township, 39 Pa. St. 92; Finkbone's Appeal, 86 Pa. St. 368; McGough v. Jamison, 107 Pa. St. 336; Bellows Falls Bk. v. Rutland Co. Bk., 40 Vt. 377; Wood, Limitations, 314-318; 1 Parsons, Notes & Bills, 273, note; 42 Am. Dec. 578.

OPINION

Vanderburgh, J. ^[1]

The contract or obligation sued on is what is commonly known as a certificate of deposit, made in the ordinary course of business, and dated March 29, 1876. The last payment thereon was made more than six years prior to the commencement of this action; and the question here presented is whether a suit might have been brought upon it immediately upon its execution, without a previous demand, as in the case of promissory notes payable on demand, or whether, in order to set the statute of limitations running, the certificate should have been first presented for payment. In Branch v. Dawson, 33 Minn. 399, (23 N.W. 552,) it is held, in the case of a general deposit of money, that the engagement of the bank, according to general commercial usage, is to pay the money when called for at the bank's place of business. In that case the amount of the deposit was simply entered upon the books of the bank and the pass-book of the depositor, in the ordinary way, and the bank made and issued no certificate or contract in writing importing an express promise or undertaking to pay the amount as a debt or obligation of the bank.

In Cassidy v. First Nat. Bank, 30 Minn. 86, (14 N.W. 363,) we held that a similar writing was in effect a negotiable promissory note, and that its character as such was not qualified by the provision therein making it payable on the return of the certificate. As it is payable upon demand, it follows logically that the instrument is to be placed upon the same footing as ordinary demand negotiable securities. And this proposition is, we think, decisive of the question here involved. It is true that the consideration for the promise is recited in and shown by the writing to be for money deposited, but we do not see that this is material. The rule as to pleading, proof, and defences would be the same as in the case of ordinary promissory notes, and a bona fide indorsee or holder might recover on the instrument purchased on the faith of its validity as a contract or obligation of the bank, though no money had in fact been deposited. Barnes v. Ontario Bank, 19 N.Y. 152, 159; Farmers & Mechanics' Bank v. Butchers Bank, 16 N.Y. 125, 130, (69 Am. Dec. 678;) Miller v. Austen, 54 U.S. 218, 13 HOW 218, 14 L.Ed. 119. Such demand certificates fall within the 60-day limitation fixed by Gen. St. 1878, c. 23, § 11, as to presentment and dishonor, and there is no reason why any distinction should be made as to the necessity of a previous demand between them and other negotiable securities. It is better that the rule be understood to be uniform, as to all such securities, that when payable on demand, unless upon their face containing a stipulation showing a different intention, (as in Brown v. Brown, 28 Minn. 501; 11 N.W. 64,) whether with or without interest, they are to be treated as due immediately, and that an action thereon against the maker is barred by the statute of limitations, unless brought within six years from the day of date thereof. Wheeler v. Warner, 47 N.Y. 519; Howland v. Edmonds, 24 N.Y. 307; Payne v. Gardiner, 29 N.Y. 146, 178, Wright and Selden, JJ.

The defendants received the...