Smiley v. Fry
| Decision Date | 30 October 1885 |
| Citation | 3 N.E. 186,100 N.Y. 262 |
| Parties | SMILEY v. FRY. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
G. W. Cotterill, for appellant, Horace B. Fry.
Geo. H. Adams, for respondent, Deorge W. Smiley.
The instrument upon which the recovery in this action is founded was in the nature of a certificate of deposit and not a promissory note. It was evidently intended as a statement of the contract under which the makers received and held money which had been deposited by the payee with them. The nature of the transaction must be determined by the construction to be placed upon the instrument itself. It declares that the sum named therein is due on demand, and that it is a special deposit distinct from other transactions with the payee. The language employed in no way indicates that the money was a loan and intended to be regarded as such. It provided that it was specially deposited and was only to be repaid when it was demanded. The words used are clear and explicit, and negative the idea that the money was to be regarded otherwise than as a special deposit, independent of any other transaction between the parties, and only to be returned when an actual demand was made for the same. The word ‘due’ does not import an obligation or promise which can be enforced without a demand, for it is expressly limited to the time when demanded. It is therefore only due when demanded. This portion of the instrument is qualified by the subsequent provision that the money is ‘especially deposited.’ The whole taken together establishes the special deposit as a separate transaction, which is to become due, or to be paid when demanded, and no sooner. It in no way partakes of the character of a promissory note, where there is an express agreement to pay without any qualification or restriction. None of the authorities cited by the appellant's counsel uphold the rule that an instrument of the character of the one under consideration is a promissory note and not a certificate of deposit merely. 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, and in such a case no indebtedness arose by reason of such deposit until a demand was made for the amount deposited. See, also, Howell v. Adams, 68 N. Y. 314;Boughton v. Flint, 74 N. Y. 476.
As the instrument in question was not a...
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