Quattrochi Bros v. Farmers & Merchants Bank

BLAND, P. J. The contention of appellants is that the action is upon a writing for the payment of money, and that the ten-year period of limitation applies. The gravamen of the complaint is that on December 16, 1891, appellants delivered to respondent money and checks amounting to five hundred and twenty-one dollars for deposit, which respondent received and entered to appellant’s credit in the bank-deposit book; that afterwards, to-wit, on the thirty-first of December, 1891, appellants left the book with respondent to be posted, and that while so in possession of the bank the respondent wrongfully and without the consent of appellants changed the de [508] posit of December 16 from five hundred and twenty-one dollars to four hundred and twenty-one dollars, by erasing the figure five and writing over it the figure four. If the entry of the deposit in appellants’ pass-book to their credit is such a writing for the payment of money, as comes within the purview of section 4272, Revised Statutes 1899 (the ten-year statute of limitations concerning personal actions), then the fact that respondent wrongfully or fraudulently changed the amount of the deposit, will no more convert the action into one for the fraudulent alteration of a written instrument, than if the amount had been evidenced by a promissory note and the respondent had fraudulently changed the amount to be paid, as evidenced by the note in its original form. In such circumstances the right of action would be upon the note, for the amount for which it was given and the fact that evidence aliunde would be necessary to prove the amount, would not change the original promise in writing to jbay the sum stipulated to be paid, to a promise resting on an oral agreement. As was said in this court in McKeen v. Bank, 74 Mo. App. l. c. 289, following Bank v. Morgan, 117 U. S. 104, “The object of a pass-book is to inform the depositor from time to time of the condition of his account as it appears on the books of the bank. It not only enables him to discover errors to his prejudice, but supplies evidence in his favor in the event of litigation or dispute with the bank.” The relation between a bank and its depositor is that of debtor and creditor. McKeen v. Bank, 74 Mo. App., supra; State v. Reid, 125 Mo. l. c. 51; Bank v. Tutt, 5 Mo. App. 342. The entry of a deposit in a pass-book to the credit of the depositor, is in the nature of a receipt, and is prima facie evidence that the bank has received the amount from the depositor and entered it to his credit. Morse on Banks (3 Ed.), sec. 290. But it is not a contract to pay money, being but a/ [509] receipt; like any other receipt, it is open to explanation by evidence aliunde. Talcott v. First Nat. Bank of Larned, 36 Pac. Rep. 1066, and cases cited. In Jassoy & Co. v. Horn, 64 Ill 379, and Schaluckey v. Field, 124 Ill. 617, it was held that an account evidenced by entries in a depositor’s bank book is evidence of indebtedness in writing and within the long period of limitation. The Illinois statute provides for actions brought upon “evidence of indebtedness in writing.” Ours provides for actions upon “any writing for the payment of money.” Under the Illinois statutes any indebtedness evidenced by writing in any form would be sufficient to bring it under the long period of limitations, while under our statute the writing, to have that effect, must contain a promise either expressed or implied to pay the amount evidenced by the writing. Reyburn v. Casey, 29 Mo. 129; Moorman v. Sharp, 35 Mo. 283; Shelton v. Wyman, 1 Mo. App. 130. And if any other evidence than the writing has to be resorted to to make out the promise, the fiv&year statute applies. Menefee v. Arnold, 51 Mo. 536; Bridges v. Stephens, 132 Mo. l. c. 552. In First Nat’l Bank v. Clark, 134 N. Y. 368, it was held that a deposit-slip given by a bank to a depositor “constitutes an acknowledgment that the amount of money named therein has been received. It is a receipt and nothing more. No promise is made to pay the sum named on return of the paper, nor is it expected by either the depositor or depositary that it will even be presented to the bank again. * * * It is not intended to furnish evidence that there remains money in the bank to the credit of a depositor, but to furnish evidence as between the depositor and depositary that on a given date there was deposited the sum named. It may all or nearly all be checked out at the moment of making the deposit-slip. * * * It is not proof of liability and will not support an action againsty the bank.” An entry of a credit in a pass-book is of no higher [510] dignity, and imports no greater obligation on the part of the bank, than a deposit-slip. Both are but receipts, and neither furnishes an obligation for the payment of money upon which an action may be maintained. In Talcott v. First Nat’l Bank, supra, it is said: “The authorities are that the entry in a pass-book by the proper officer, of the amount and date of the deposit, is prima facie evidence that the bank received the amount, and binds the bank like any other form of receipt. But, the entry is only a receipt, and is open to explanation aliunde,” and if shown to be a mistake is no longer binding upon the bank. The receipt is also open to correction in favor of the depositor if it is erroneous, citing Am. and Eng. Ency. of Law, pp. 102, 103, and 1 Morse on Banking (3 Ed.), sec. 290. On both reason and authority, we conclude that the action is not on the pass-book; that no liability is created by the entry of credits therein, express or implied, to pay to the depositor the sums therein acknowledged to have been received, and that it is not evidence in writing for the payment of money, and, hence, is not protected by the ten-year statute of limitations.. II. Erom what has been said in the first paragraph of this opinion, it is clear that the action does not come within the provision of section 4293, Revised Statutes 1899, which excludes the application of the general statutes of limitations to suits brought to enforce payment of bills, notes or other evidences of debt issued by moneyed corporations. The judgment is affirmed. All concur.