Tobias v. Josiah Morris & Co.

TYSON, J. Quite a number of assignments of error are predicated upon the rulings of the court upon demurrers to pleas and replications. These assignments cannot be considered for the reason there is no judgment to support them.—Cartlidge v. Sloan, 124 Ala. 596. The complaint contains a number of counts. All of them, except the last, are the common money counts. The last count claims, “the sum of nineteen hundred and fifty-three and thirty one-hundredths dollars for money and certain checks or bank drafts, which were collected by defendants, deposited with Josiah Morris & Co., defendant’s bank to be credited to the account of plaintiff and with defendants’ bank, to-wit: during the months of September, November and December, 1895, which said money was subject to the check or demand of plaintiff. And' plaintiff avers that the said defendants have failed anl refused upon demand to pay the same, ■which sums with interest thereon are still due and unpaid . ” The sufficiency of the averments of this count was not tested by demurrer. Construing it in connection with the evidence introduced upon the trial of the cause, it was obviously the intention of the pleader to frame it so as to recover a general deposit claimed to have been made by the plaintiff with the defendants as bankers. Indeed this was the purpose of the, suit. The common monej counts do not disclose this purpose. It nowhere — 546 — appears in them that such was the object sought to be accomplished by them. For aught that appears the relation of ordinary creditor 'and debtor only existed between the parties. While it is true the relation of creditor and debtor does exist between the depositor and the banker, yet the usages of the banking, business have introduced certain special rules which enter, if not expressly, impliedly into the contract to pay upon demand. And until a formal demand is made no action lies for the recovery of a general deposit. • In Branch v. Dawson, 33 Minn. 399, it is said: “By universal understanding on the part of bankers and depositors, there is a condition attached to the undertaking of the bank. It is not its duty, as it is that of an ordinary debtor, to seek the creditor and pay him wherever found; it does not undertake to pay without respect to place—to pay absolutely and immediately. But its engagement is to pay at its banking-house, when payment shall be called for there. Everybody understands that to be what it assumes to do. * * This being the understanding upon which the deposit is made, it is parcel of the bank’s contract to repay, that, as a condition precedent to its duty to repay, the depositor shall call upon it to do so at its banking-house, and there is no default of the bank until such call is made.” In Downes v. The Phœnix Bank, 6 Hill 297, 299 Justice Bronson sard: “Judging from the ordinary course of this busniess [between bank and depositor], I think the understanding between the parties is, that the money shall remain with the banker until the customer, by his check, or in some other way, calls for its repayment; and if such be the nature of the contract, the banker is not in default, and no action will lie, until payment has been demanded. No one could desire to receive money on deposit for an indefinite period, with a right in the depositor to sue the next moment, and without any prior intimation that he wished to recall the loan.” Says Morse, in his work on Banks and Banking, in section 322: “We have already seen that it is a contract specially modified by the clear legal understanding that — 547 — the money shall he forthcoming to meet the. order of the creditor whenever that order shall be properly presented for payment. It follows, therefore, that this demand for payment is an integral and essential part of the undertaking, and it may be said, even of the debt itself. . In short, the agreement of the bank with the depositor, as distinct and valid as if written and executed under the seal of each of the parties, is only to pay upon demand. * * * The undertaking of the bank is not to pay immediately and absolutely, but when payment shall be required. It is in no default till payment is demanded. Therefore, no right of action exists until demand is made as stipulated for in the implied contract of deposit.” In Watson v. Phœnix Bank, 8 Metc. (Mass.) 217, the court said: “When money is deposited in a bank, to be drawn at the pleasure of the depositor, the bank it not liable to an action without a previous demand. The request is parcel of the contract, and must be proved. The bank agrees to pay to the order of the depositor; but if it were liable to a suit without previous demand, it would be under the necessity of refusing all deposits, or of making special contracts in every case. The duties of the parties are reciprocal; the one to pay on demand, the other to make such demand before a right of action accrues.” In Freeman’s notes on page 420 of 19 Am. Dec. it is said: ' “Since a general deposit is a loan which the banker is obliged to pay when called upon by the draft of the customer, it is clear that there can be no default until the payment has been demanded and refused.” A number of authorities are cited in this note to support the proposition. Indeed, it is the universal doctrine that a depositor cannot maintain an action for his deposit without a previous demand by check or otherwise for its repayment.—Boone on the Law of Banking, § 57 and authorities cited in notes; Bolles on Banks, § 315 'and note 1; 2 Am. & Eng. Encyc. Law, 101 and note 1. The bringing of the suit does not amount to a demand in such cases. 1 Morse on Banks and Banking, § 289 (e) ; Downes v. Phœnix Bank, 6 Hill 297; Chemical Nat. Bank v. Bailey, 12 Blatchf. 480; Payne v. Gardiner, 29 N. Y. 146. — 548 — As we have already said, 'the purpose of tlio suit was to recover a general deposit of the defendants as bankers. The common money counts do not aver that any demand was made or an excuse for the plaintiff’s failure to make it. They were not subject to demurrer on this 'account for the reason, as we have already stated, that it does not appear upon their face that a general deposit was 'sought to be recovered under them, or that the 'reOation of depositor and banker existed between the plaintiff and defendant out of which the cause of action arose. A demand being a condition precedent to the maintenance of the suit, no recovery can be had upon these counts in their present form. It is true the evidence tends to show a demand was made, but it is as essential to a recovery that the complaint 'should aver it as it is that the evidence shoiild establish it. “When by the express or implied terms of the contract it was incumbent on the plaintiff, before the commencement ■of his action to request the defendant to perform his contract, such request being as it were a condition precedent must be averred; * * * or there must be ■some allegation to dispense with it.”—Ohitty on PI. *p. 340. See also 3 Encyc. PI. & Pr. pp 251-256. Appellees insist that the special count (numbered 91 does not-contain a cause of action, and therefore, no recovery could be. had .upon it. In this we cannot concur. Some of the reasons assigned in 'support of this insistence might have 'been made the 'basis of a demurrer, pointing 'out the defects in the sufficiency of the averments, but 'amendable defects cannot be made the ■ground for holding that 'a count contains no substantial •cause of action. It is only necessary, in considering the other questions in the case, to deal with the two items of deposit —one for $800 deposited September 15 and the other for $678.30 deposited December 30—as the plaintiff in her testimony disclaims any interest or claim to the other items deposited by her husband and credited by the defendants to her account. The fact is undisputed that these two items were money which belonged to the plaintiff arising from the proceeds of two 'drafts -collected by the defendants and placed to the credit of B. — 549 — Tobias by M. S. Tobias upon the books of the defendants and were paid out by the defendants upon drafts drawn by B. Tobias by M. . S. Tobias. That M. S. Tobias'was at the time the deposits were made the husband of B. Tobias, the plaintiff. It is also without dispute that when the account 'with the defendants was opened, that both the plaintiff and her husband were strangers to the defendants. That she and her husband went to the defendants’ place of business in company with AV. B. Jones for the purpose o.f opening the account. That either Jones or the husband presented to the receiving teller of the bank a draft on New York payable to the order of B. Tobias. As to which of them presented the draft to the teller, and as to whether the draft was endorsed by plaintiff in 'the bank or before going there, there is conflict in the testimony. So, too, there i>s a conflict in the testimony as to what occurred pending the negotiations for the deposit. The plaintiff testified that Jones handed the draft to the teller requesting him to deposit it to her credit. That the teller took the check and after examining it replied he would do so, hut that she would have to endorse it. That he handed it hack to Jones, who in turn handed it to her and after endorsing it she returned it to Jones who handed it hack to the teller. Her testimony tends to show that nothing else took place in the bank at that time. The testimony of the other witnesses who were present during this transaction and examined by the defendants contradicts the plaintiff’s statement, on nearly every material point. Their, testimony tends to show that the deposit was made by M. S. Tobias in the name of his wife, the plaintiff. That it was stated to the teller at the time that the deposits were to he drawn out upon checks to he signed by M. S. Tobias. That the teller, then took the signature to he attached to the 'Checks to he drawn on this account in a hook kept by tliq bank for that purpose, Which signature was written by M. S. To-bias. This signature as .written on the record to be affixed to the checks was “B. Tobias.” Plaintiff denies that she heard any of the conversation relative to the drawing out the money, or that she1 saw her husband give the signature to the teller. In fact she practically denies that any of these things happened. — 550 — The main contention on the part of the defendants is that the plaintiff is estopped to claim the money on account of her acts and conduct upon the occasion of the deposit. This, of course, depends in a measure upon whether the jury are reasonably satisfied from the evidence that tlie teller was instructed to honor drafts drawn by her husband; or the signature was given at the time the deposit was made which was to be affixed to drafts to be drawn, and whether the defendants relied upon this in paying out the money. There can be no doubt, nor can an inference to th'e contrary be drawn, if thfs occurrence took place at that time, that the plaintiff was present. If present and although she may not have heard what was said -and did not see tlie signature given, yet if by her acts and conduct on the occasion she led the bank to believe that she had entrusted the entire matter to Jones and her husband or to her husband to make the contract of deposit and how the account was to be kept and how drawn out, and it acted upon it, she must suffer for her own neglect, rather than the bank. “If a man, whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts, and that it was a true representation, and that the latter was intended to act upon it in a particular way, and he with such relief does act in that way to his damage, the first is estopped from denying that the facts were as represented.”—Carr v. London & North Western Railway Co. L. R. 10 C. P. 317. “A party, who negligently or culpably stands by and allow another to contract on the faith and understanding of a fact which he can contradict, cannot after-wards dispute that fact in an action against the person whom he has himself assisted in deceiving.”—Gregg v. Wells, 10 Adol. & E. 90. “If any person, by actual expressions or by a course of conduct, so conducts himself that another may reasonably infer the existence of an agreement or license, and acts upon such inference, whether the former intends that lie should do so or not, the party using that language, or toho has so conducted himself, cannot af — 551 — terwards gainsay the reasonable inference to be drawn from his words or conduct.”—Cornish v. Abington, 4 H. & N. 549. See also Swan v. The North British A. Co., 7 H. & N. 601. Negligent silence may work an estoppel as effectually as an express representation.—Bigelow on Estoppel, 588; 7 L. B. A. 755, and note under “Silent Acquiescence” on p. 756. So too acts or conduct, though nothing is said, if they are calculated to mislead, and do in fact mislead, will work an estoppel, notwithstanding there was no intention to do so.—2 Pom. Eq. §§ 805-809. The foregoing principles apply to the second deposit claimed by plaintiff as well as to the first, in the absence of evidence of a notification by her to the 'bank that it should be treated -differently from the first in respect to drawing it out. “A course of -dealing between the bank and a single person may establish obligations as to its «continuance, and, if nothing is provided to the -contrary, will govern subsequent transactions, o-f the same nature, between them.”—1 M-orse on Banking, § 9. If her conduct on -the -occasion of the making the first deposit was such as to estop lief, it is the equivalent to an assent by her to the agreement made with the bank as to how and by whom the deposits were to be withdrawn; and the bank had the right to presume that this agreement was to be enforced in the manner of -drawing the checks upon the account, until some other -and different agreement was made. Twenty-three charges were requested by the xilaintiff. They are not insisted upon in argument in detail. We must -also decline to so consider them. ‘ The leading contention or insistence is that the court erred in giving the general affirmative charge in favor of the defendants. This point is well taken. The main question in the case is whether the x>laintiff by her eon-duct on the occasion of the first deposit estopped herself to now claim these two deposits, which the bank has paid out upon drafts signed in her name by her husband. Under the evidence this is one of fact to be -determined by the jury under the principles -of law above announced. Reversed and remanded.