Talcott v. First Nat. Bank of Larned

• Decision Date: 09 June 1894
• Citation: 53 Kan. 480,36 P. 1066
• Parties: TALCOTT v. FIRST NAT. BANK OF LARNED.
• Court: Kansas Supreme Court

36 P. 1066

53 Kan. 480

TALCOTT v. FIRST NAT. BANK OF LARNED.

Supreme Court of Kansas

June 9, 1894

Syllabus

1. A pass book given by a bank to a depositor is not a written contract, but is prima facie evidence that the bank received the amounts at the dates therein stated, and binds the bank like any other form of receipt, and is open to explanation by evidence aliunde.

2. When an appeal is taken to the district court from the judgment of a justice of the peace, and full pleadings are filed in that court, the parties are bound thereby; and if it appears from the answer of the defendant that no counterclaim, set-off, or other defense is alleged, and it is shown by the pleadings, including the allegations in the answer of the defendant, that the plaintiff is entitled to judgment, the court may render judgment upon the pleadings on the motion of the plaintiff.

The bank filed a reply, pleading the three-years statute of limitations. Before the justice of the peace, the bank recovered a judgment of $200. Talcott appealed to the district court. On the 18th of September, 1890, the district court sustained the statute of limitations of three years and rendered judgment against Talcott upon the pleadings, in favor of the bank, for $210.26. Talcott excepted, and brings the case here.

Error from district court, Pawnee county; Samuel W. Vandivert, Judge.

Action by the First National Bank of Larned against Harry Talcott. Judgment for plaintiff and defendant brings error. Affirmed.

April 14, 1890, the First National Bank of Larned, in this state, commenced an action before ajustice of the peace in Pawnee county against Harry Talcott, on a check, of which the following is a copy: “The First National Bank. Larned, Kansas, 3-17, 1890. Pay to the order of Harry Talcott, two hundred dollars. $200.00. Harry Talcott.” Talcott filed an answer, and, for his fourth defense, alleged: “And for a further defense, and as defendant’s bill of particulars and set-off, defendant says: That on the 2d day of January, 1885, this defendant opened a running account with said plaintiff, by depositing with said plaintiff the sum of $200, and receiving from said plaintiff a pass book, in which a receipt for the said sum of $200 was duly entered. A copy of said pass book is hereto attached, marked ‘Exhibit A,’ and made a part thereof. That afterwards, on the 28th day of January, 1885, defendant made another deposit with this said plaintiff, of $200, receiving therefor, as a receipt, a pass book from said plaintiff, in which the said sum of $200 was duly entered as being received by said plaintiff, and credited to defendants. Said account, a copy of said pass book, marked ‘Exhibit B,’ is hereto attached, and made a part hereof. That afterwards, on the 28th day of September, 1885, defendant made another deposit with the said plaintiff, of $103.60. A receipt for said sum of $103.60 plaintiff duly entered in the pass book first given by plaintiff to defendant as is shown by ‘Exhibit A,’ heretofore referred to, and attached hereto, and made a part hereof. That defendant drew divers checks from the 2d day of January, 1885, to the 15th of December, 1885, to the amount of $302.80, which were duly paid by plaintiff in amounts as is more fully shown and set out in ‘Exhibit A,’ heretofore referred to, attached hereto, and made a part hereof. That on the 15th day of December, 1885, defendant wishing to close his said account with the said plaintiff, made a demand upon said plaintiff, at their place of business in the city of Larned, for the balance, of $200.80, due to this defendant from said plaintiff. That said plaintiff refused, and has at all times refused, to pay this defendant, up till the 17th day of March, 1890, the said balance due him. That on said 17th day of March, 1890, there was due this defendant from said plaintiff the sum of $200.80, with interest thereon from the 15th day of December, 1885, at 7 per cent. per annum, amounting to the sum of $59.65, making a total due this defendant of $260.45. That on the said 17th day of March, 1890, defendant drew and presented to plaintiff the check for $200 sued on in this action, and which is set out in plaintiff’s bill of particulars, and received the money thereon, which said sum of $200 this defendant has applied on the said sum of $260.45 due this defendant from said plaintiff on that said day. That there is now due this defendant a balance on said account of $60.45, with interest from March 17, 1890, at the rate of 6 per cent, per annum until paid.”

H. C. Johns, Wm. G. Fairchild, and T. W. Johns, for plaintiff in error.

C. N. Sterry, for defendant in error.

OPINION

HORTON, C. J. (after stating the facts).

By section 18 of the Civil Code, it is provided that, "after the cause of action shall have accrued," "an action upon any agreement, contract or promise in writing" must be brought "within five years," and "an action upon a contract not in writing" "within three years." It is claimed that as the alleged set-off, being evidenced by a bank or pass book, was upon an "agreement, contract or promise in writing," the statute of three years was no bar. The trial court ruled otherwise. The pass book was balanced December 15, 1885. This action was commenced April 14, 1890,— more than four years after that date. The authorities are that the entry in a pass book, "by the proper officer, of the amount...