Mereness v. First National Bank

Ladd, J. [12] In the early case of Bean v. Briggs, 1 Iowa,. 488, this court held a time certificate of deposit, in the usual form, negotiable, for that it possessed all the characteristiesof a promissory note. Story defines a “promissory note”' [13] to be “a written engagement by one person to pay another person, therein named, absolutely and unconditionally a certain sum of money at a time specified therein.” Story, Notes, section 1. The ordinary certificate of deposit is precisely within this definition, and it is generally held that such certificates are, in effect, promissory notes, and governed, with certain exceptions, by the same ■rules. Klauber v. Biggerstaff, 47 Wis. 551 (3 N. W. Rep. 357) ; Bank v. Brown, 45 Ohio, St. 39 (39 Am. St. Rep. 527) ; Institute v. Weedon, 18 Md. 320 (81 Am. Dec. 603) ; note to O’Neill v. Bradford, 42 Am. Dec. 575; 5 Am. & Eng. Enc. Law (2d ed.) 803, and cases collected. The decisions reaching a contrary conclusion seem to rest on the peculiar wording of particular certificates. See Patterson v. Poindexter, 6 Watts & S. 227, 40 Am. Dec. 554; O’Neill v. Bradford, supra. The exceptions referred to relate to the necessity of a demand before suit may be maintained or the statute of limitations begins to run. The cases so holding seem to rest on the theory that the transaction not alone creates a ■debt against the drawer of the certificate, but is also in the nature of a bailment, — in contemplation of law a deposit, and not a loan, — and hence that demand is essential before the holder is entitled to the return of his money. Payne v. Gardiner, 29 N. Y. 146 (divided court) ; Bellows Falls Bank v. Rutland Co. Bank, 40 Vt. 377; Brown v. McElroy, 52 Ind. 404; Munger v. Bank 85 N. Y. 580; McGough v. Jamison, 107 Pa. St. 336; Schute v. Bank, 136 Mass. 487. The settled doctrine of this court, however, seems to be that, when, a person deposits money in a bank in the usual course of business, he loans it to the bank, which becomes his debtor-to the amount of deposit,, and not his bailee therefor. Lowry v. Polk County, 51 Iowa, 50; Long v. Emsley, 57 Iowa, 11. See cases collected in 3 Am. & Eng. Enc. Law, 826. The title to the money passes to the bank, and becomes subject to its absolute control. The depositor cannot lay claim to the specific money, nor can he maintain an action in replevin [14] or trover therefor. His sole remedy is assumpsit. A promissory note payable on demand is duo presently, and the statute of limitations begins to run from its date. See note to Merritt v. Todd, 80 Am. Dec. 243. Why a different rule should be applied to a contract held to be an exact equivalent of such a note we are unable to discover. Certificates of deposit in the usual form are no more nor less than promissory notes by the banks issuing them, and, if there is any valid reason for declaring the one due at its date and the other only on demand, this has not been disclosed by the very eminent courts making such a distinction. The reasoning of Payne v. Gardiner, 29 N. Y. 146, is quite as persuasive when applied to a demand nolo. There appears to bo no tenable ground for not applying the rule pertaining to- promissory notes payable on demand, and holding that the statute of limitations commenced to run ac. tho date of this certificate. Curran v. Witter, 68 Wis. 16 (31 N. W. Rep. 705); Mitchell v. Easton, 37 Minn. 335 (33 N. W. Rep. 910) ; Tripp v. Curtenius, 36 Mich. 494; Brummagin v. Tallant, 29 Cal. 504; Lynch v. Goldsmith, 64 Ga. 42; Hunt v. Divine, 37 Ill. 137. See First Nat. Bank of Rapid City v. Security Nat. Bank of Sioux City, 34 Neb. 71, 15 L. R. A. 386, and note 11 (s. c. 51 N. W. Rep. 305). [14] II. It is the settled doctrine of this state that, where a party against whom a cause of action has accrued in favor of another by actual fraudulent concealment prevents such other from obtaining knowledge thereof, tho statute of limitations will begin to run from the time tho right of action is discovered or, by the exorcise of ordinary diligence, might have been discovered. District Tp. v. French, 40 Iowa, 601; Findley v. Stewart, 46 Iowa, 655 ; Bradford v. McCormick, 71 Iowa, 129; Wilder v. Secor, 72 Iowa, 161; Carrier v. Railway Co., 79 Iowa, 80. See note to Shellenberger v. Ransom, 31 Neb. 61, 25 L.R. A. 566 (s. e. 47 N. W. Rep. 700). As we have seen, the action accrued at15 the time the money was deposited, October 12, 1881, and, as no fraud against deceased is charged, the statute commenced to run at that time. It was not interrupted by his death. Grether v. Clark, 76 Iowa, 383 ; Murphy v. Railway, 80 Iowa, 26. And, generally, the statute may not be suspended after beginning to run. Black v. Ross, 110 Iowa, 112. There are exceptions to this rulo, as when no opportunity is afforded to resort to the courts, as in case of war, Amy v. Watertown, 130 U. S. 320 (9 Sup. Ct. Rep. 530, 32 L. Ed. 953), or absence from the state (section 345, Code). But wc have discovered no caso holding that deception by the party liable will toll the statute. Here what is alleged to have been said and written amounted to no more than a denial- of liability, and that evidence thereof existed in the books of tlio bank. The deceased must have known otherwise, and plaintiff acquired the Tight of action as his representative within eight years after it had accrued. Surely, under such circumstances, the claim of the reputed debtor, though knowingly false, that ho owed nothing, and had no evidence to the contrary, furnished 310 reason or excuse to the creditor for not instituting suit within the statutory period. — Affirmed. Granger, C. I., not sitting.