Tripp v. Curtenius

• Decision Date: 06 June 1877
• Citation: 36 Mich. 494
• Court: Michigan Supreme Court
• Parties: Samuel A. Tripp and another v. Frederick W. Curtenius and others

36 Mich. 494

Samuel A. Tripp and another v. Frederick W. Curtenius and others

Supreme Court of Michigan

June 6, 1877

Heard April 18, 1877

Error to Kalamazoo Circuit.

Judgment reversed, with costs, and a new trial ordered.

Severens Boudeman & Turner, for plaintiffs in error.

The instrument sued upon contains all the elements of a promissory note and is in legal effect a promissory note payable on demand. It would be overdue after the lapse of a reasonable time; and any person taking it after such reasonable time had elapsed would take it the same as any other overdue paper, subject to the equities between the parties; and the payments and set-offs of defendants should have been allowed. And they cited.--2 Daniels on Neg. Inst 601; Poorman v. Mills, 4 Cal. 354; Brummagim v. Tallant, 29 Id. 506. Coye v. Palmer, 29 Id. 159; Wilton v. Adams, 39 Id. 37; Howe v. Haskness, 11 Ohio St., 449; Bank of Peru v. Farnsworth, 18 Ill. 563; Carey v. McDonald, 7 Ga. 84; Cate v. Patterson, 25 Mich. 191; Miller v. McClelland, 13 How. Pr., 218, Levett v. Palmer, 3 N. Y., 357; Curtis v. Levett, 15 N. Y., 263; Bank of Orleans v. Merrill, 2 Hill 295; Palmer v. Adams, 17 Barb. 386; Kilgore v. Buckley, 14 Conn. 362; Losee v. Dunkin, 7 Johns. 69; Furman v. Haskins, 2 Caines 369; Loomis v. Pulver, 9 Johns. 244; Sice v. Cunningham, 1 Cow. 397; Bank of Utica v. Smeades, 3 Id. 662; Herrick v. Woolveston, 41 N. Y., 581; Morey v. Wakefield, 41 Vt. 24; Nevins v. Townsend, 6 Conn. 5; Parker v. Tuttle, 44 Me. 459; Sylvester v. Crapo, 15 Pick. 92; Carlton v. Bailey, 27 N. H., 230; Camp v. Clark, 14 Vt. 387; Carll v. Brown, 2 Mich. 401.

Arthur Brown, for defendants in error.

Defendants after issuing such a certificate are estopped to deny its truth; they cannot contradict their written contract that the amount of money was deposited thus certified by them.--First National Bank, etc., v. Leach, 52 N. J., 350. Such certificate when issued becomes like a bank bill, the representative of so much money, and circulates from hand to hand in a like manner. Like bills of issue they are promissory notes for the purpose of bringing suit upon them.--Cate v. Patterson, 25 Mich. 191. But it does not necessarily follow that they are subject to the same rules as to demand and as to the time when they fall due. It may well be that as between private individuals a promissory note payable on demand should be presented promptly, and yet if money is deposited in a bank no inference of dishonor can be drawn from the fact that it is left there a long time. It is the business of the institution to keep money on deposit, and the holder would not be likely to present it as quickly as between private persons. The certificate of deposit and the certified check are in legal sense the same thing and are governed by the same rules.--Merchant's Bank v. State Bank, 10 Wall. 648; 2 Daniels on Bills & Notes, 1603. No mere lapse of time will render such a check or certificate past due and dishonored.--Girard Bank v. Bank of Penn Township, 39 Penn. St., 92; Willets v. Phoenix Bank, 2 Duer 121; F. & M. Bank v. B. & D. Bank, 4 Kern. 624; Smith v. Miller, 43 N. Y., 176; Meads v. Merch. Bank, 25 N. Y., 147; 1 Parsons on N. & B., 273, and note.

Payment to the original payee before a note is due, cannot affect a subsequent holder.--1 Parsons on N. & B., 280; 2 Id. 230. A holder of a note payable on demand, without actual notice of demand, is a bona fide holder before maturity, and takes the paper free of all equities.--1 Parsons on N. & B., 270; Field v. Nickerson, 13 Mass. 131. No objection was made to defendants showing, if they could, that plaintiffs or those through whom they claimed were not bona fide holders, and witnesses were examined on that subject.

OPINION

Marston, J.:

Plaintiffs in error, as co-partners, engaged in the business of banking on the 22d of October, 1873, issued a certificate, of which the following is a copy:

"Certificate of deposit. Not subject to check, and no interest."

"$ 800. S. A. Tripp & Co., Bankers, "South Haven, Mich., Oct. 22, 1873.

"Daniel Howard has deposited in this bank eight hundred dollars, payable to the order of himself, in current funds, on the return of this certificate properly endorsed.

"No. 265. $ 800.

"S. A. Tripp & Co."

Howard endorsed this certificate and transferred it to B. H. Dyckman, who, being indebted to the defendants in error, bankers at Kalamazoo, delivered to them this certificate to apply upon his indebtedness, shortly prior to February 14, 1876. The certificate was presented for payment February 14th, 1876, and payment refused, and an action was commenced March 10th following to recover the amount thereof.

Upon the trial counsel for plaintiffs in error offered to prove that four hundred and sixty-two dollars and six cents had been paid upon this certificate at or about the time it was issued, leaving a balance which had afterwards been tendered to Dyckman while he held it, and since then paid into court. This evidence was objected to, principally upon the ground that the plaintiffs below were bona fide holders. The objection was sustained and judgment rendered for the whole amount of the certificate.

In Cate v. Patterson, 25 Mich. 191, it was held that a certificate of deposit, similar to the one issued in this case, contained all the elements necessary to constitute, and was in legal effect a promissory note, and such is the undoubted weight of authority, as will appear from the cases collected and cited in the brief for plaintiffs in error.

This being the case, it is difficult to see why the principles applicable to promissory notes, payable on demand, should not apply to this class of paper. It is but a promise to pay money on demand, without interest, which indicates an intention to leave it on deposit but for a short period. It is argued that a certificate of deposit and a certified check are in legal sense the same thing, are governed by the same rules, and that no mere lapse of time will render such check or certificate past due or dishonored.

The authorities cited to sustain this view are Willets v. Phoenix Bank, 2 Duer 121; F. & M. Bank, v. B. & D. Bank, 4 Kern. 624; Smith v. Miller, 43 N.Y. 171; Meads v. Merchants' Bank, 25 N.Y. 143; Merchants' Bank v. State Bank, 77 U.S. 604, 10 Wall. 604; and Girard Bank v. Bank of Penn, 39 Pa. 92.

In these cases the court in discussing the legal qualities...