Rominger v. Keyes

Worden, J. — Complaint by the appellees as the bona fide holders, for value, by endorsement before maturity, against the appellant and Henry F. Kominger as makers, of the following promissory note: “Hope, Ind., March 20th, 1877. “Four months after date we promise to pay James B. Drake, or order, four hundred dollars, and live per cent', thereon for attorney fees, value received, without any relief whatever from valuation or appraisement laws, negotiable and payable at the Indiana Banking Company of Indianapolis, Indiana, with ten per cent, interest until paid. “Henry F. Rominger, “Mary E. Rominger.” A verdict was rendered in favor of Henry F. Rominger on his answer of infancy. Issues were joined between the plaintiffs and Mary E. Kominger, which were found for the plaintiffs, and judgment was rendered against her in favor of the plaintiffs. The case was tried on the theory that the note was gov [376] erned by the law merchant. The appellant answered, among other things, as follows : “2. The defendant for answer herein says that the note in suit is wholly without consideration, and the Indiana Banking Company is not a corporation organized under or pursuant to any law of the State of Indiana, nor of any State of the United States, or of any act of Congress, or under any ¿few whatever.” A demurrer to this paragraph of answer, for want of suffi‘ci'ent facts, was sustained, fend this ruling is assigned, among other things, for error. It is apparent that, if the note is not governed by the law merchant, so much of the above paragraph of answer as alleges that the note was without consideration, was a good defence-thereto in the hands of any endorsee thereof. None Rut notes payable in a bank in this State are put upon the footing of bills of exchange, and governed by the law merchant. The statute provides that “Notes payable to order or bearer in a bank in this State, shall be negotiable as inland bills of exchange, and the payees and endorsees thereof may recover as in case of such bills.” 1 R. S. 6876, p. 636, sec. 6. ■ The note in this case is payable “at the Indiana Banking Company, of Indianapolis, Indiana.” It is not payable at .the office of the company, or the banking house of the company ; nor is any place of payment designated in it. The makers of the note may be estopped thereby to deny the existence of such a company as that mentioned. If their contract had been with the company, they would be estopped to- deny its existence at the time of the contract. But, conceding for the purposes of the case, that the makers are estopped to deny the existence of the company, the estoppel extends no further. There may have been such a company fix- existeixce,. without an office or baixkiixg house, aixd the [377] makers of the note, as we have seen, did not agree to pay at the office or banking house of the company. One of the definitions of the word “bank” is “the house or place where such business is carried on.” Burrill. “In commercial law, a place for the deposit of money.” Bouvier. “Commercially, it is a place where money is deposited, for the purpose of being let out at intei’est, returned by exchange, disposed of to profit, or to be drawn out again as the owner shall call for it.” Wharton. “An establishment for the custody of money; or for the loaning and investing of money ; or for the issue, exchange, and circulation of money; or for more than one or all of these purposes. The term is applied to the incorporation or association authorized to perform such functions; to the body of directors, or other officers authorized to manage its •operations; and to the office or place where its business is' •conducted.” Abbott. The words “in a bank,” as used in the statute above •quoted, embody the idea of place as fully as any of the foregoing definitions. The purpose of the statute was, among other things, to have the place of payment specified, so that •demands of payment there made, and proper notice of nonpayment, would be sufficient to charge the endorser. As the note in suit, by its terms, is not payable in or at a bank, or the office, banking-house or place of business of a' bank, it does not come within the terms of the statute, and' is not governed by the law merchant. While we recognize' to the fullest extent the rights of parties to commercial paper, we see neither wisdom nor legal propriety in drawing within the vortex of the law merchant paper which, by its terms, does not belong to the class governed by that law. The court below erred in sustaining the demurrer to the ¿second paragraph of the appellants’ answer. [378] The judgment below against the appellant is reversed, with costs, and the cause remanded for further proceedings, in accordance with this opinion.