Wheeler v. Commercial Bank of Moscow

• Decision Date: 14 November 1896
• Citation: 46 P. 830,5 Idaho 15
• Parties: WHEELER v. COMMERCIAL BANK OF MOSCOW
• Court: Idaho Supreme Court

46 P. 830

5 Idaho 15

WHEELER v. COMMERCIAL BANK OF MOSCOW

Supreme Court of Idaho

November 14, 1896

DEPOSITOR-DEMAND AGAINST A BANK WHICH HAS FAILED UNNECESSARY.-The failure to allege and prove a demand in an action by a depositor against a bank, which has failed, is not ground for reversal of judgment, where the record shows such demand would have been fruitless and unavailing.

NONPRESENTATION OF DRAFT AT DRAWEE BANK-EFFECT AS DEFENSE TO ACTION.-Plaintiff procured of defendant bank, within a short time of the failure of the bank, two drafts, giving their checks therefor, upon funds deposited by them with the bank. The drafts were not accompanied by the payees therein, but were returned to plaintiffs by due course of mail, not having been presented at drawee bank. Held, that in an action by plaintiffs to recover amount due them from said bank including amount of said drafts, the failure of plaintiffs or the payee in the draft to present them at the drawee bank for payment, and have them duly protested was not, in the absence of any proof that defendant had been damaged by such remissness, under the statutes of Idaho, a defense to plaintiff's action.

SECTION 4231 OF THE REVISED STATUTES CONSTRUED.-Section 4231 of the Revised Statutes of Idaho commented upon and applied.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Affirmed, with costs.

Forney Smith & Moore, for Appellant.

It is an elementary principle of law that before a general depositor of a bank can institute action for the balance of his deposit, he must make demand for it. (Idaho Rev. Stats sec. 4059, 4212; Boone on Banking, secs. 46, 39, 40; 2 Am. & Eng. Ency. of Law, p. 101, and cases; Branch v. Dawson, 33 Minn. 399, 23 N.W. 552.) The complaint further does not aver facts which would excuse such demand. It is a universal rule, that he who would bring himself within an exception must plead himself within the exception. (Senter v. Davis, 38 Cal. 450; Fitnan on Trial Procedure, 505.) It is held that the presentation of a check, demand or order for the balance due a general depositor of a bank to enable him to institute his action, is a condition precedent thereto. This being the case we contend that where the right of a party to maintain an action depends upon the performance of a condition precedent, such party must either plead the performance of the condition or must plead facts showing the waiver thereof (4 Ency. of Pl. & Pr. 629, 631; Maxwell's Code Pleading, 80, 81; Baylies' Code Pleading and Forms, 36, 136, 137; Bliss on Code Pleading, 2d ed., sec. 287, c. 421, Moak's Van Santvoord's Pleadings, 3d ed., 180, 236.) It has been held, and we think correctly, that the insolvency of the drawer of commercial paper does not and cannot excuse presentation thereof, but only excuses due diligence in making such presentation. (5 Am. & Eng. Ency. of law, 528, 90; Thompson v. Armstrong, 1 Ill. (Breese) 48; Smith v. Miller, 52 N.Y. 545.)

Sweet & Steele, for Respondents.

Admitting the claim of defendant that a demand is necessary in cases between a depositor and a bank while the bank is still conducting its business, yet when a bank closes its doors and ceases to do business no demand is necessary before commencing the action. (1 Wait's Pleadings and Defenses, sec. 9, p. 504; Watson v. Phoenix Bank, 8 Met. 217, 41 Am. Dec. 500; 2 Am. & Eng. Ency. of Law, 101, note 1; Cooper v. Mowrey, 16 Mass. 7.) The failure to plead a demand made by the depositor upon a bank, where it is shown by the evidence without objection that the bank has failed, and that a demand would therefore be useless, does not affect the substantial right of the adverse party. As before stated, where evidence is admitted without objection, which proves certain facts to be true that were not alleged in the complaint, the omission is cured by the introduction of such testimony. (Western Union Tel. Co. v. Longwill, 5 N. Mex. 308, 21 P. 339; Harkness v. McClain, 8 Utah 52, 29 P. 964; Cox v. Delmas, 99 Cal. 104, 33 P. 836; Parrott v. Byers, 40 Cal. 622.)

HUSTON, J. Morgan, C. J., and Sullivan, J., concur.

OPINION

HUSTON, J.

There appears to be no dispute as to the facts in this case. They are, briefly, as follows: The defendant was on the nineteenth day of March, 1895, and for some time previous had been engaged in the banking business in the town of Moscow, Idaho. The plaintiffs were customers and depositors of said bank. On the twelfth day of March, 1895, plaintiffs, then having a balance to their credit in said bank, procured therefrom a draft upon the Chase National Bank of New York City, for the sum of $ 500; and on the nineteenth day of March, 1895, plaintiffs procured from said defendant another draft upon the said Chase National Bank for the sum of $ 500. For both of these drafts plaintiffs gave checks. At the time the last draft was procured, about 3 o'clock P. M. on the nineteenth day of March, 1895, the plaintiffs had a deposit in said Commercial Bank of Moscow of $ 1,109.92. The defendant bank closed its doors on the 19th of March, 1895. Soon thereafter both said drafts were returned to plaintiffs by the payees named therein, with a slip pasted thereon, containing the news, "Bank Failed." On the twenty-ninth day of March, 1895, this action was brought by plaintiffs for the recovery of $ 1,099.92, the amount claimed by plaintiffs to be...