Miller v. Bank of Holly Springs

Anderson, J., delivered the opinion of the court. Appellant, John M. Miller, sued appellee, Bank of Holly Springs, in the circuit court of Marshall county for the value of United States War Saving Stamps owned by him of the maturity value of one thousand dollars, which appellee held as a special deposit, and failed to return to appellant on demand because of the fact that its bank vault where said stamps Avere kept had been burglarized and said stamps stolen therefrom. At the conclusion of the evidence there was a directed verdict in favor of appellee, and judgment accordingly, from AArhich appellant prosecutes this appeal. A reArersal is asked upon that action of the court. Therefore the evidence must be treated as proving every fact favorable to appellant’s case which it either proves or tends to prOA'e. So considering the evidence, appellant made the following case: Appellee had in its bank a Corliss safe, in which it kept its money, Liberty Bonds of its customers, and other valuables. In addition it had a steel lined Arault in which it kept as special deposits the War Saving Stamps of its customers as Avell as other valuables. In June, 1918, appellant purchased through*appellee United States War S'aving Stamps of the maturity value of one thousand dollars, Avliich he left on special deposit Avith appellee for safekeeping. These stamps were placed by an officer of the appellee in its said vault. In the summer or early fall of 1919 the vaults of a good many banks over the country were being burglarized, and United States Liberty Bonds — 64 — and War Saving Stamps stolen therefrom. Appellant, learning of this fact through the public press, approached Mr. Fort, who was the active president of appellee bank as well as a director therein, and stated to him that, in view of these burglaries, he ivas uneasy about- his War Saving Stamps remaining in, appellee’s said vault, and therefore desired to remove them to another bank for safe-keeping. Mr. Fort in response stated that, if appellant would permit his stamps to remain in appellee bank, he would, in order to assure their safety, put them in the Corliss safe, where the money of the bank ivas kept; and in this connection stated that it would take a burglar twenty-four hours to get into said Corliss safe. Thereupon appellant agreed that the stamps should remain on deposit with appellee upon condition that they were put in that safe. In November, 1919, appellee’s vault was burglarized, and the appellant’s stamps stolen therefrom, appellee having failed to place them in its Corliss safe as agreed, which was not burglarized, ¿nd therefore appellant’s loss was caused by appellee’s breach of its agreement. Appellee contends that under the provisions of its charter the action of its officers in receiving ¡Special deposits of this character Avas ultra vires, for the reason that its charter did not authorize it to receive that character of deposits. Section 4 of appellee’s charter among other powers confers on appellee (quoting its language) : “That said company shall be authorized to receive on deposit, in any sum not less than one dollar in value of gold or silver coin, bullion, bank notes, treasury notes, or other valuable thing.” (Italics ours.) We are of the opinion that United States War Saving Stamps come within the language as well as the intent and. purpose of appellee’s charter. “Other valuable thing” is very broad and comprehensive. It is sufficient to include anything of value which is ordinarily deposited with banks for safekeeping. And, furthermore, appellee’s managing-officers so construed its charter, and in dealing with its customers acted on such construction; therefore, if there Avere any ambiguity in its charter in that respect, such — 65 — construction would control as between appellee and its customers relying thereon. Appellee contends that said contract of deposit was without consideration moving to it; therefore it held said deposit merely as a gratuitous bailee, and is not liable to appellant for its loss unless such loss was caused by appellee’s negligence, and, there being no evidence of such negligence, the action of the trial court in directing a verdict for appellee was authorized. On the other hand, appellant contends that said contract was one of special bailment, with sufficient consideration to support it, and appellee, having violated its terms, is liable to appellant for the loss suffered by him as the result of such breach, and that whether appellee was negligent or not in handling said stamps has no bearing on the question of its liability to appellant. Was said contract based on a sufficient consideration in law? If it was, appellee is liable to appellant for his loss, regardless of the fact that it took the same care of appellant’s stamps that it did of its own and those of its other depositors, and regardless of whether such care constituted negligence or not, for the contract was binding according to its terms. The evidence shows that appellant was a regular customer of appellee, not only as a special depositor, but as a general depositor with a checking account. The court knows and will take judicial notice of what is a matter of common knowledge, that receiving and keeping for their customers special deposits of valuables of the character here involved is a large and very important part of the business of banks; the main purpose being to induce such depositors to keep with them their surplus moneys on checking, time deposit and savings accounts. In fact a bank, refusing its customers such'facilities for the safe-keeping of their valuables, would be at a great disadvantage in competing with other banks furnishing such means. There is a sufficient consideration for a promise if there be any benefit to the promisor or any loss, detriment, or inconvenience to the promisee. The consideration to be sufficient in law need not be adequate. The consideration — 66 — is sufficient if the person to whom the promise is made restrains from doing anything which he has the right to do, whether there be any actual loss to him or actual benefit to the party making the promise or not. 13 C. J., section 150, pp. 315, 316; Lawson on Contracts (2d Ed.), sections 98, 99, pp. 116, 117. The latter authority in section 99, page 117, illustrates the principle, thus: “If A. promise B. to pay him five dollars if he will not eat a dinner or ten dollars if he will not wear his best coat for a day, B.’s abstaining from eating his dinner and refraining from wearing his coat is sufficient to support A.’s promise, for B. has a legal right to do both of these things. In a New York case, an uncle promised a nephew that if he would refrain from drinking liquor, using tobacco, swearing, and playing certain games for money until he came of age, he would pay him five thousand dollars. The nephew kept his side of the bargain, but, when sued for the money, the uncle claimed that the agreement was not founded on a valid considération. But the court said: ‘It is sufficient that he restricted his lawful freedom of action within certain limits upon the faith of his uncle’s agreement.’ ” In discussing the question as to what was necessary to constitute a sufficient consideration to uphold a promise, this court in Byrne v. Cummings, 41 Miss. 192, said: “Any benefit resulting to the party promising, by the act of the promisee, is a sufficient consideration. And it is not essential that there should be any adequacy in point of actual value, but a slight benefit will be sufficient. “So also any loss, trouble or inconvenience sustained by the promisee, at the instance of the person making the promise, will be a good consideration, although such trouble, loss or obligation be of a trifling description, provided it be not utterly worthless in law and fact; and although the person making the promise obtain no benefit or advantage from the performance of the stipulated act by the promisee. These principles are to be found in every elementary treatise on the law of contracts.” — 67 — And in Magee v. Catching, 33 Miss. 672, it was said: “The law never looks to the amount of the consideration to uphold a contract, so that there is a consideration, though trivial, moving the parties. Loss or injury to one of the parties, or benefit to the other, may be sufficient consideration.” Applying those principles to the case here: Appellant had the right to remove his War Saving Stamps to another bank than appellee’s for safe-keeping. Appellee induced appellant to refrain from doing so by promising to remove said stamps into its Corliss safe and there keep them. It seems clear that under the authorities referred to there was sufficient consideration for said contract, and it bound appellee to do what it therein agreed to do. This identical question was involved in Tallahatchie Compress & Storage Co. v. Hartshorn, 125 Miss. 662, 88 So. 278, 17 A. L. R. 971. That was a suit for damages by Mrs. Hartshorn against the compress company for a breach of contract for the storage by the latter of cotton belonging to her. The compress company ivas engaged in storing and compressing cotton. Its warehouse contained a brick compartment and a wooden compartment. Mrs. Hartshorn considered the latter unsafe, and declined to store her cotton with the compress company unless it was put in the brick compartment, which the compress company agreed to do, but failed to do; and a fire in the compress destroyed said wooden compartment and along with it Mrs. Hartshorn’s cotton, Which was therein stored, while the cotton in the brick compartment was undamaged. No contract was shown by which Mrs. Hartshorn agreed to pav'any more than the ordinary storáge rate. The court held that the contract involved was one of special bailment, and the compress company, having breached it, was liable for Mrs. Hartshorn’s loss. The court said, among other things: “When a warehouseman agrees to store goods in a particular place and complies with his contract, he is, of cqurse, not liable for the loss of these goods, unless this loss be due to his negligence. This rule is elementary. But when he agrees to store goods in a particular place and stores — 68 — them in a different place, he has breached his contract of bailment, and is therefore responsible for the return of the goods or for their value. He stores them in a different place at his own peril. This rule is thus laid down in Elliott on Contracts, vol. 4, section 3100: ‘The warehouseman must comply with the contract of storage. If he has contracted to store goods in a specified warehouse, or in a particular place, and stores them in a different place, it is at his own risk, and he is liable for any injury which occurs, even without his own negligence.’ ” In the case now before the court we have not a general contract of bailment, but a special contract of bailment. The care to be exercised by a bailee under a general contract of bailment is fixed by law, while the obligations of the parties under a special contract of bailment are fixed by the terms of the contract itself. We think the authorities referred to by counsel touching the care to be exercised by a bailee for hire, as well as a gratuitous bailee under a general contract of bailment,' are without application here; for this contract comes within the definition of neither of those. By the bailment here involved appellant simply agreed to refrain from removing his War Saving Stamps from appellee’s, custody upon condition appellee would in the future keep them in its Corliss safe, which appellee agreed to do. In our judgment this was a binding contract, and appellee is liable to appellant for the loss he sustained because of the breach thereof by the former. Reversed and remanded.