Read v. Bank of Attica

• Decision Date: 14 April 1891
• Citation: 124 N.Y. 671,27 N.E. 250
• Parties: READ v. BANK OF ATTICA.
• Court: New York Court of Appeals Court of Appeals

124 N.Y. 671

27 N.E. 250

READ

v.BANK OF ATTICA.

Court of Appeals of New York, Second Division.

April 14, 1891.

Appeal from supreme court, general term, fifth department.

Marshall, Clinton & Wilson, for appellant.

O. O. Cottle, for respondent.

PARKER, J.

We agree with the court below in all respects save one. The admission of parol testimony, tending to show an agreement by the defendant to pay interest, was error, because its purpose was to vary the terms of the certificate of deposit, which was as follows: ‘$4.152.64. Bank of Attica, State of New York. Buffalo, March 25, 1879. J. J. P. Read has deposited in this bank forty-one hundred and fifty-two 64-100 dollars, payable to the order of J. J. P. Read, on return of this certificate. W. K. ALLEN, Cashier. J. W. SMITH, Teller.’ Had the plaintiff, after receiving the certificate, made a demand for payment, and the defendants, in order to secure the use of the money for a longer period, had promised to pay interest thereon, the plaintiff consenting, it is not questioned but such agreement could have been proven and enforced. But we do not understand the record before us to present such a situation. On the contrary, the writing and the alleged oral agreement appear to have constituted one transaction The testimony on that subject is as follows: The plaintiff testified that, after the certificate had been handed to him by Allen, (the cashier,) he had a conversation as to the bank paying interest on the deposit. Allen told him the deposit would bear 3 per cent interest if left for any length of time. Defendant's cashier testified, on direct examination, that, after the certificate of deposit was made out and delivered, he had some conversation with plaintiff in regard to the interest. The understanding was that the certificate should bear interest at 3 per cent. On cross-examination he was asked: ‘Are you in the habit of making a private arrangement that certificates should bear interest, and not note it in the certificate?’ He answered: ‘No, sir; my intention was to have written in there the rate of interest that we agreed to allow him. The conversation was this: When I handed him the certificate he says, ‘You are to allow me interest on this, are you?’ I said: ‘You are a man pretty flush in money, and you ought not to ask interest of us.’ ‘Well,’ he says, ‘I can't afford to leave it without something.’ ‘Well,’ I said, ‘will three per cent. do you?’ ‘Yes.’ Then a customer came and spoke...