Curran v. Witter

Lyoít, J. In Klauber v. Biggerstaff, 47 Wis. 551, the late chief justice, after giving the elementary definition of a promissory note, proceeded to say that “ the ordinary form of a certificate of deposit of money falls precisely within the definition, and it seems strange that there was ever a doubt that it was in law a negotiable promissory note. O'Neill v. Bradford, 1 Pin. 390, and cases there cited. Such doubt, however, may now be considered at rest. Kilgore v. Bulkley, 14 Conn. 362; Bank of Orleans v. Merrill, 2 Hill, 295; Miller v. Austen, 13 How. 218.” After this authoritative statement of the rule, it is useless to cite any more of the — 20 — numerous cases elsewhere which hold the same doctrine. Several of them will be found in the brief of counsel for the defendant. The certificate of deposit in suit is in the ordinary form of such instruments, and is therefore, in substance and legal effect, a negotiable promissory note. The next question is, When did the statute of limitations commence to run against the certificate? The plaintiff maintains that it commenced to run only upon demand of payment, which was first made in 1885; while the defendant claims that it commenced to run as soon as the certificate was issued. There are plenty of adjudications by courts of great authority sustaining both of these propositions. The question is now presented to this court’ for the first time; and we must choose between these conflicting lines of authority, and adopt the rule which seems to us to rest on the soundest principles and which best accords with the analogies of the law. What would be the equivalent of this certificate were it put in the usual form of a promissory note? Undoubtedly it would be for the same amount, payable on demand to the same payee or order, perhaps at the office of the maker, and probably without interest until actual presentation and demand of payment. It would be substantially in this form: “ Eor value received, on demand, I promise to pay James Curran, or order, at my bank in Grand Rapids, Wisconsin, $540, without interest until after demand.” That such a note is due presently and the statute of limitations commences to run against it from its date, is well settled. What valid reason can be given why the same results should not follow the giving of a certificate of deposit which contains the same contract and is the exact equivalent of such a note ? If any such reason exists, we have failed to comprehend it. In Brummagin v. Tallant, 29 Cal. 503, it was held that the statute of limitations begins to run against a banker’s certificate of deposit payable on — 21 — demand from the date of the same, and that no special demand is necessary to put the statute in motion. "We entirely agree wifh the supreme court of Michigan, which in Tripp v. Curtenius, 36 Mich. 496, after approving the rule of the California case, proceeds to say of a certificate of deposit in the usual form: “ To hold such instruments to be in legal effect promissory notes payable on demand, and yet not apply the principles applicable to demand promissory notes, either because of the peculiar form of the instrument or because issued by a firm engaged in the ordinary business of banking, would be to create a distinction unsound in principle, and one not warranted by any necessity that we can discover. ” See, also, Cate v. Patterson, 25 Mich. 191; Poorman v. Mitts, 35 Cal. 118. The cases which hold that such a certificate is not due until presented for payment, and hence that the statute of limitations does not commence to run against it until such presentation, seem to go upon the ground that the transaction is not alone of money, creating a debt against the drawer of the certificate, but rather that it is in the nature of a bailment, upon which no cause of action accrues until demand; in other words, it is said the transaction is in contemplation of law a deposit and not a loan. This doctrine is held or intimated in Payne v. Gardiner, 29 N. Y. 146; Munger v. Albany City Nat. Bank, 85 N. Y. 589; Nat. Bank of Fort Edward v. Washington Co. Nat. Bank, 5 Hun, 605; Fells Point Sav. Inst. v. Weedon, 18 Md. 320; and Bellotas Falls Bank v. Rutland Co. Bank, 40 Vt. 377. With all due deference to the very able courts which have adopted this view, we cannot give our approval to the doctrine thus enunciated by them. We think that when a person deposits money in a bank' in the usual course of business he loans it to the bank, and the bank thereby becomes his debtor to the amount of the deposit, — not his bailee of the money. By the deposit the title to the money passes — 22 — to the bank, and it is thereafter its money, subject to its absolute control and disposition. The depositor cannot reclaim the specific money. He cannot maintain replevin or trover for it (as he might were the deposit a bailment), but only assum/psii for the amount deposited. In short, the transaction has no element of a bailment, but every essential element of a loan of money. That was the view of Judge Bronson in Downes v. Phœnix Bank, 6 Hill, 297, which was an action for the amount of a deposit, the evidence of which was the entry made by the proper officer of the bank in plaintiff’s bank book. The judge said, speaking of the transaction: “ It is not strictly a deposit, nor a bailment of any kind; for the same thing is not to be returned, but another thing of the same kind and of equal value. In the civil law it is called a mutuum or loan for consumption. Except where the deposit is special, the property in the money deposited passes to the bank, and the relation of debtor and creditor is created between the parties.” It is unnecessary to prolong this discussion. We must hold, with the Michigan and California courts, that the money claimed in this action was due and payable at the date of the certificate in suit, — -October 6, 1869,— and hence that the claim was barred by the statute (R. S. sec. 4222) on and after October 7, 1875. Sec. 4234 has no application to this action, because James Curran died more than one year before the statute had run against the claim. That section provides that “if a person entitled to bring action die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his representatives after the expiration of that time, and within one year from his death.” It is obvious that this provision only reaches a case where the person'entitled to bring the action dies during the last year of the term of limitation. Neither is sec. 4251, which doubles the period of limitation in a certain — 23 — contingency, applicable to this case. That section only applies to cases in which there is no person in existence when the cause of action accrues who can.bring the action. We áre further of the opinion that this case is not within the provisions of sec. á-230, R. S., which is a part of chapter 177. That chapter contains the statute of limitations. The section provides that “none of the provisions of this chapter shall apply to any action brought upon any bills, notes, or other evidences of debt issued by any bank, or issued or put into circulation as money.” The certificate of deposit in suit was not issued by a bank; neither was it put into circulation as money. The claim having been barred by the statute of limitations long before the action was commenced, instead of directing a verdict for the plaintiff the court should have directed the jury to find for the defendant. . The rejection of the testimony of the witness Moody was also error. On the authority of Schettler v. Jones, 20 Wis. 412, his testimony, founded on the entries made by him in the defendant’s account-books, should have been received, although he had no independent recollection of the transactions thus entered. In the opinion by Chief Justice Dixok in Sehettler v. Jones, the rule in its application is thus stated: “ The charges were not mere private memoranda made by the witness for his own convenience, but entries in the books of the plaintiff in the regular course of business. In such cases, we think the sounder ' and better rule to be that if the witness can swear positively that the memóremela or entries were made according to the truth of the facts, and consequently that the facts did exist, that is sufficient, though they may not remain in his memory at the time he gives his testimony. He may testify from the entries; and when he does so he swears positively to the truth of the facts stated in them.” This case was followed, and the same rule applied, in Riggs v. Weise, 24 Wis. 545. Many — 24 — cases in support of the rule are cited in the opinion in Schettler v. Jones, and in the brief of counsel for defendant in the present case. See note to this case in 31 N. W. Rep. 710.— Rep. By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.