Clark v. Holder

LEVY, J. (after stating the facts as above). The plaintiffs in the suit sought a recovery against Mrs. W. A. Clark on her in-dorsement of the certificates in suit, and Mrs. W. A. Clark does not deny that she did indorse' the certificates at the time she delivered them to the plaintiffs. A certificate of deposit as such, like the instruments in evidence, is, as generally held, a negotiable instrument (2 Daniel on Neg. Instr. [5th Ed.] § 1702; 3B.C. L. p. 574, § 203; 4 ElliQtt on Contracts, § 3360; Hatch v. First National Bank of Dexter, 94 Me. 348, 47 Atl. 908, 80 Am. St. Rep. 401; Kirkwood v. First National Bank of Hastings, 40 Neb. 484, 58 N. W. 1016, 24 L. R. A. 444, 42 Am. St. Rep. 683; Easley v. National Bank, 138 Tenn. 369, 198 S. W. 66, L. R. A. 1918C, 689), and a certificate of deposit, being negotiable in form, is transferable by indorsement in the same manner and with the same legal result as other negotiable paper. A liability assumed by an indorser, and which he contracts, is that the negotiable instrument will be paid according to its purport upon due presentment or demand. 1 Daniel on Neg. Instr. §§ 669a, 671; 3 R. C. L. p. 1148, § 363. Therefore this is sufficient to determine the case and authorize the judgment for the plaintiffs, unless the evidence raised essential issues pleaded as a defense. And it is believed that a controverted issue was not presented by the evidence on the grounds relied upon as a defense. The evidence is conclusive that it was not within the contemplation of the parties that the certif- ' icates should be taken as a cash payment for the house and lot. The agreement, as shown by the record, was that appellee Holder was to receive the certificates, less the accumulated interest to date of deed, as consideration for the house and lot. The certificates of deposit were payable on demand at the option of the owner, but no interest was payable unless the deposits were left in the bank for six months. At the'time of the transfer of the certificates by Mrs. Clark to Holder, the deposits had not been on deposit for the required six months, and there was not, in virtue of the terms of the certificates, any interest legally due thereon. Clearly, then, it was within the contemplation of Mrs. Clark and Holder that the deposits should remain in the bank for the six months in order to get the interest thereon. She was to be paid the accumulated interest to the date of transfer, and received it under the agreement, as a valuable consideration therefor. If holding the certificates for six months was necessary, as it was, to entitle the holder to receive any interest as between Mrs. Clark and the bank, Mrs. Clark could not legally require Holder to present the certificates for payment by the bank earlier than the agreed six months. The agreement evidences a transfer of the certificates of deposit as such by Mrs. Clark as the consideration for the land. In this agreement Holder did not have to present the certificates for payment until the maturity of same at the end of six months. And there is no pretense in the evidence that appellee Holder had any knowledge or information as to the insolvency of the bank at any time before the day its doors were closed by the commissioner of insurance and banking. The certificates show upon their face that they are time certificates of deposit, upon which interest had been contracted to be p&id by the bank, and Mrs. Clark, as in-dorser, had no legal right to demand that appellee Holder should attempt to prove them as a claim payable out of ,the depositors’ guaranty fund. The failure of appellees to meet this request would not legally absolve the indorser from any liability on her in-dorsement. Appellants predicate error upon the ruling of the court in sustaining objection to certain evidence. The assignments of error in this respect should be, we conclude, overruled, as presenting no reversible error. The court did not err, we conclude, in giving the peremptory instruction, and the judgment is affirmed.