Prewett v. First National Bank of Hagerman, 4797

CourtUnited States State Supreme Court of Idaho
Writing for the CourtFEATHERSTONE, C. Per Curiam.
Citation45 Idaho 451,262 P. 1057
Docket Number4797
Decision Date02 January 1928
PartiesM. M. PREWETT, Respondent, v. FIRST NATIONAL BANK OF HAGERMAN, a Corporation, Appellant

262 P. 1057

45 Idaho 451

M. M. PREWETT, Respondent,
v.

FIRST NATIONAL BANK OF HAGERMAN, a Corporation, Appellant

No. 4797

Supreme Court of Idaho

January 2, 1928


BANKS-SPECIAL DEPOSITS-NOTICE TO BANK OFFICIALS-ACTION TO RECOVER DEPOSITS-STATUTE OF LIMITATIONS-BILLS AND NOTES-INDORSEMENT BY PAYEE-REPOSSESSION-RIGHT TO RECOVER.

1. C. S., sec. 6610, limiting time for commencing action on contract or obligation not in writing, sec. 6611, subd. 3, relating to actions for taking property, and sec. 6611, subd. 4, relating to actions for relief on ground of fraud or mistake, held inapplicable to action to recover deposit made in bank for plaintiff which bank credited on depositor's note to bank; sec. 6617, specifying four-year period for cases not otherwise provided for, being applicable.

2. Under C. S., sec. 6616, where an action is brought to recover money or property deposited with bank or banker, limitation under sec. 6617 does not begin to run until after demand by depositor, even though deposit is special.

3. When money is deposited in bank to be paid to third person, such deposit is "special deposit."

4. When money is appropriated by depository to its own use, in no event does C. S., sec. 6617, limiting time of commencing actions to recover deposits, begin to run until date of conversion.

5. C. S., sec. 6617, limiting time of commencing actions to recover deposits, can never begin to run until cause of action has accrued.

6. Where bank depositor deposited sum in bank to be paid to plaintiff about March 6, 1920, and on March 17, 1920, bank credited depositor's note to bank with amount, and plaintiff first made demand on bank for money after that date, which was less than four years before action was commenced, plaintiff's action to recover deposit was not barred by C. S., secs. 6616, 6617, providing for commencement of action within four years, since statute did not begin to run until plaintiff made demand for money and it could not begin to run until bank transferred amount and credited it on note.

7. When negotiable instrument, after it has been indorsed, comes again into possession of payee, he is entitled to recover thereon regardless of condition as to its indorsement unless defendant can establish plaintiff's want of title.

[45 Idaho 452]

8. Bank had knowledge that deposit made by mortgagor to be paid to plaintiff mortgagee was proceeds of mortgaged property, where cashier having knowledge of transaction so notified new cashier and new president of bank when bank changed hands.

APPEAL from the District Court of the Fourth Judicial District, for Gooding County. Hon. H. F. Ensign, Judge.

Action to recover deposit. Judgment for respondent. Affirmed.

Judgment of the trial court affirmed with costs to respondent.

James R. Bothwell and W. Orr Chapman, for Appellant.

"To actions brought to recover money or property deposited with any bank, banker, trust company or savings and loan society, no limitation begins to run until after an authorized demand." (C. S., sec. 6616; Kerr's Code of Civil Proc., part 1; Bell v. Bank of California, 153 Cal. 234, 94 P. 889; Lord v. Morris, 18 Cal. 482; Miller & Lux v. Batz, 131 Cal. 402, 63 P. 680; Banks v. Stockton, 149 Cal. 599, 87 P. 83.)

"And it is immaterial whether equitable or legal relief is sought." (Wiliams v. Southern Pacific Co., 150 Cal. 624, 89 P. 599.)

"A deposit is complete when the money passes from the possession of the depositor into the possession of an agent of the bank, within the bank, and during banking hours." (7 C. J., p. 637, sec. 318, and cases cited; pp. 639, 640, sec. 323, and cases cited; Fidelity State Bank v. North Fork H. Dist., 35 Idaho 797, 31 A. L. R. 781, 209 P. 449; 7 C. J., p. 631, sec. 307, and cases cited; Dearing v. Hockersmith, 25 Idaho 140, 136 P. 994; Duckett v. Nat. Mechanics' Bank, 86 Md. 400, 63 Am. St. 513, 38 A. 983, 39 L. R. A. 84.)

"The fact that there are checks outstanding given by the depositor in favor of third persons, does not deprive the bank of the right to apply the deposit on its debt; but there is no right of set-off as against a check which has been actually presented before the set-off is made." (7 C. J., p. 661, sec. 361, pp. 642, 643, sec. 328, p. 673, sec. 382, pp. 833, 834, sec. 798, and cases cited.)

"Of course there can be no recovery against a bank based on a representation of an officer, even if chargeable to the bank, where plaintiff fails to show that he was injured thereby." (7 C. J., pp. 530, 531, sec. 131, p. 552, sec. 163, at p. 556.

A cashier of a national bank could not guarantee the payment of a debt of a third party, so as to bind the bank, where the bank received no benefits therefrom.

James & Ryan, for Respondent.

An action upon a contract, obligation or liability not founded upon an instrument of writing may be brought within four years. (C. S., secs. 6616, 6617.)

In an action brought to recover money deposited at a bank no limitation begins to run until after an authorized demand. (C. S., sec. 6616; Bates v. Capital State Bank, 18 Idaho 429, 110 P. 277.)

Such a statutory provision applies to special deposits as well as general deposits. (7 C. J., p. 665; Larsen v. Utah Loan & Trust Co., 23 Utah 449, 65 P. 208.)

Where a person deposits money at a bank to be paid to a third person, such deposit is a special deposit. (Russell v. Bank of Nampa, 31 Idaho 59, 169 P. 180; Powder Valley State Bank v. Hudelson, 74 Ore. 191, 144 P. 494.)

The statute of limitations can never begin to run until a cause of action has accrued. (Canadian Mortgage & Sav. Co. v. Williamson, 32 Idaho 624, 186 P. 916; Rawleigh Medical Co. v....

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7 practice notes
  • Independent School District No. 1 of Benewah County v. Diefendorf, 6321-6322
    • United States
    • United States State Supreme Court of Idaho
    • January 11, 1937
    ...210 P. 586; Ivie v. Jenkins & Co., 53 Idaho 643, 26 P.2d 704; Skinner v. Porter, 45 Idaho 530, 263 P. 993; Prewett v. First Nat. Bank, 45 Idaho 451, 262 P. 1057.) Checks drawn on bank are the same as payment by cash. (Skinner v. Porter, supra; Thomas v. Mothersead, 128 Okla. 157, 261 P.......
  • Common School District No. 18 v. Twin Falls Bank and Trust Co., 5860
    • United States
    • United States State Supreme Court of Idaho
    • June 24, 1932
    ...v. Bell, 8 Idaho 1, 101 Am. St. 140, 65 P. 710; San Luis Obispo County v. Farnum, 108 Cal. 567, 41 P. 447; Prewett v. First Nat. Bank, 45 Idaho 451, 262 P. 1057; Adams County v. Ritzville State Bank, 154 Wash. 140, 281 P. 332; City of Seattle v. Walker, 87 Wash. 609, 152 P. 330; City of Hil......
  • Spence v. Howell, No. 21355
    • United States
    • United States State Supreme Court of Idaho
    • February 1, 1995
    ...of limitations does not begin to run until a claim accrues upon the breach of the contract. Prewett v. First Nat'l Bank of Hagerman, 45 Idaho 451, 457, 262 P. 1057, 1058 (1928). The question of when the breach occurred is a factual one. Therefore, we look to the record to see if there is su......
  • Erwin v. Erwin, No. 16960.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 8, 1942
    ...jurisdictions. In addition to the cases cited, see Harris v. Neuman, 1935, 179 Ga. 879, 177 S.E. 698;Prewett v. First Nat. Bank, 1928, 45 Idaho 451, 262 P. 1057;Arnold v. Security Bank of St. Joseph, 1926, 221 Mo.App. 683, 285 S.E. 161;City of New York v. Fidelity Trust Co. of New York, 193......
  • Request a trial to view additional results
7 cases
  • Independent School District No. 1 of Benewah County v. Diefendorf, 6321-6322
    • United States
    • United States State Supreme Court of Idaho
    • January 11, 1937
    ...210 P. 586; Ivie v. Jenkins & Co., 53 Idaho 643, 26 P.2d 704; Skinner v. Porter, 45 Idaho 530, 263 P. 993; Prewett v. First Nat. Bank, 45 Idaho 451, 262 P. 1057.) Checks drawn on bank are the same as payment by cash. (Skinner v. Porter, supra; Thomas v. Mothersead, 128 Okla. 157, 261 P.......
  • Common School District No. 18 v. Twin Falls Bank and Trust Co., 5860
    • United States
    • United States State Supreme Court of Idaho
    • June 24, 1932
    ...v. Bell, 8 Idaho 1, 101 Am. St. 140, 65 P. 710; San Luis Obispo County v. Farnum, 108 Cal. 567, 41 P. 447; Prewett v. First Nat. Bank, 45 Idaho 451, 262 P. 1057; Adams County v. Ritzville State Bank, 154 Wash. 140, 281 P. 332; City of Seattle v. Walker, 87 Wash. 609, 152 P. 330; City of Hil......
  • Spence v. Howell, No. 21355
    • United States
    • United States State Supreme Court of Idaho
    • February 1, 1995
    ...of limitations does not begin to run until a claim accrues upon the breach of the contract. Prewett v. First Nat'l Bank of Hagerman, 45 Idaho 451, 457, 262 P. 1057, 1058 (1928). The question of when the breach occurred is a factual one. Therefore, we look to the record to see if there is su......
  • Erwin v. Erwin, No. 16960.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 8, 1942
    ...jurisdictions. In addition to the cases cited, see Harris v. Neuman, 1935, 179 Ga. 879, 177 S.E. 698;Prewett v. First Nat. Bank, 1928, 45 Idaho 451, 262 P. 1057;Arnold v. Security Bank of St. Joseph, 1926, 221 Mo.App. 683, 285 S.E. 161;City of New York v. Fidelity Trust Co. of New York, 193......
  • Request a trial to view additional results

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