Verdi v. Helper State Bank

FRTCK, J. The plaintiff, as administratrix of the estate of one Tony Yerdi, deceased, commenced this action against the defendant to recover a certain amount of interest alleged to be due upon a certain certificate of deposit. The complaint sets forth two causes of action. In the first cause of action, after stating the necessary matters of inducement, plaintiff alleged: “That on July 11, 1917, plaintiff loaned defendant the sum of ten thousand ($10,000.00) dollars, for the use of which defendant agreed to pay interest at the rate of four (4) per cent, per annum for a period of one year; that defendant issued its certificate of deposit in favor of plaintiff, which said certificate provided for interest at the rate of four (4) per cent, per annum for a period of only six months from July 11, 1917; that subsequent to the issuance of said certificate, to wit, on the same date, plaintiff discovered that said certificate was issued for a period of only six months; that she thereupon called the matter to the attention of defendant, and defendant then and there agreed that interest would be paid to plaintiff at the rate of four (4) per cent, per annum for a period of one year from July 11, 1917; that plaintiff, relying upon the said promise, agreement, and representation of defendant, permitted defendant to have and use the said ten thousand ($10,000.00) dollars for the said period of one year, to wit, up to and including the 11th day of July, 1918.” The plain tiff further alleged that on July, 11, 1918, she made demand for said $10,000, together with interest at the — 505 — rate of 4 per cent, per annum from July 11, 1917, to July 11, 1918, and that the defendant refused to pay interest for the full period stated, but only paid interest at the rate, aforesaid ending January 11, 1918, amounting, to $200; that the interest for said six months commencing'January 11, 1918, and ending July 11, 1918, is due and unpaicl, wherefore she demanded judgment for said $200 and costs., The second cause of action sets forth the same transaction in somewhat different phraseology. The second cause of action was, however, disregarded, and the verdict of the jury is based entirely upon the first cause of action. The defendant answered the complaint, and, after admitting the matters of inducement, it also admitted that the plaintiff had made a deposit of $10,000 in defendant’s bank, but averred that said deposit was to draw 4 per cent, interest for a period of six months only; that defendant had agreed to pay interest for no longer period. The defendant also denied the alleged representations set forth in the complaint, averred that it had paid to plaintiff the $10,000 at the date it was demanded as alleged in the complaint, and denied that it was indebted to the plaintiff in any sum or amount whatever. • The case was tried to a jury, which returned a verdict in favor of plaintiff “for four per cent, interest on ten thousand dollars from January 11, 1918, to July 11, 1918.” • The amount of interest, to wit, $200, was not stated in the verdict. Judgment was duly entered on the verdict for said $200, from which defendant appeals. Among the errors assigned are that the evidence is insufficient to justify the verdict and that the court misled the jury as to the law. Qn reading the evidence, the writer was of the opinion that it was insufficient to justify the verdict. In view, however, that a majority of the members of the court are of the opinion that the evidence is of such a character that we should not say as a matter of law what the findings upon the evidence should be, I cheerfully yield to the judgment of my Associates in that regard. We are, however, agreed that the — 506 — district court erred in charging the jury as will hereinafter appear, and for that reason the judgment must be reversed and the cause remanded for further proceedings. In view, therefore, that the cause must be remanded, we shall refrain from setting forth or expressing any opinion upon the effect of the evidence, but shall confine ourselves to a consideration of the legal questions involved. The action was commenced to recover interest upon a certain certificate of deposit after the certificate had matured by its own terms. The certificate reads as follows: “Helper, Utah, July 11,'1917. No. 463. “This certifies that Maria de Angele Verdi, Admr., has deposited with the Helper State Bank ten thousand dollars ($10,000.00), payable to the order of herself, countersigned by the iEtna Casualty Co. on the return of this certificate, properly endorsed, six months after date, with interest to maturity at the rate of four per cent, per annum. "J. A. Pland, Assistant Cashier.’’ There was an indorsement on the back of the certificate which the testimony shows was placed thereon and signed on the date the same was issued and before it was delivered, which indorsement reads as follows: “Pour per cent, interest will be paid if left for six months. No interest will be paid after maturity, and all interest is forfeited if principal is drawn before maturity. J. A. Pland, Assistant Cashier.” There is much controversy between respective counsel in their briefs respecting the legal effect of certificates of deposit. Many cases are cited, especially by counsel for plaintiff. Practically all of these cases, however, have no bearing on this case for the reasons (1) that the facts and circumstances of this case are entirely different from those in the cited case; and (2) because the questions whether an ordinary certificate of deposit matures without a demand for payment, and when the statute of limitations begins to run, which are the principal subjects discussed in most of the cases cited, are not material, (a) because the certificate in question ..here matured by its own terms, and (b) for the reason that in this state, by virtue of Comp. Laws Utah 1917, § 6478, there is no — 507 — limitation in favor of bank deposits. That section reads : "To actions brought to recover money or other property deposited with any hank, banker, trust company, or savings or loan corporation, association, or society, there is no limitation.” It will be observed that the certificate in question here was negotiable in form, and thus, under the law, constituted a negotiable instrument. See 2 Daniels, Negotiable Instruments (6th Ed.) § 1703, where a large number of cases are cited in support of the text. At all events, the certificate of deposit in this case must be treated as an instrument in writing which evidenced a transaction between 1 the parties, and hence must be considered in the light of the same rules of law and evidence as other written instruments. In 3 R. C. L. p. 574, § 202, it is said: “As regards matters of evidence, a certificate of deposit is usually subject to the rules applicable to other written contracts.” While there is some diversity of opinion with respect to what extent parol evidence may be admitted in actions to recover on certificates of deposit, yet such difference does not relate to the principles governing the parol evidence rule, but arises entirely out of the different forms of certificates and the nature of the transactions. See Coleman v. First National Bank of Elmira, 53 N. Y. 388. See, also, the note to the case of Steckel v. First National Bank of Allentown, 39 Am. Rep. 760, where the subject is thoroughly discussed. Moreover, so-called certificates of deposit are sometimes no more than acknowledgments of the receipt of money, such as ordinary deposit slips, etc., and when such is the case they are treated merely as receipts. See First National Bank, etc., v. Clark, 134 N. Y. 368, 32 N. E. 38,17 L. R. A. 580. We are, however, not dealing now with such an instrument, but are dealing with a certificate of deposit which, as already pointed out, constitutes a negotiable instrument and not a mere receipt. The certificate in question is for a certain sum, namely, $10,000, which is payable at a fixed time, “six months after date,” and is made payable to the order of the depositor. The conditions which entitled the depositor to interest, and the rate thereof, are also clearly stated. The rate is four — 508 — per cent, per annum if the money is "left for six months.” Further, the certificate provides, "no interest will be paid after maturity, and all interest is forfeited if principal is drawn before maturity.” It would seem that in the absence of a legal modification of the foregoing stipulations, which constitute the contract between the parties, there is little room for real controversy respecting the rights of the respective parties. It has repeatedly been held that such a certificate matures at the time stated; in this case, at the end of six months. First National Bank v. Security National Bank, 34 Neb. 71, 51 N. W. 305, 15 L. R. A. 386, 33 Am. St. Rep. 618, and eases there cited; Hunt v. Divine, 37 Ill. 137. In Towle v. Starz, 67 Minn. 70, 69 N. W. 1098, 36 L. R. A. 463, the certificate was substantially in the same terms as the one in question, and Mr. Justice Buck, in a dissenting opinion, which, however, relates to a point not controverted by the majority of the court, uses the following language, which the writer adopts as expressing his own views, namely: “The words ‘to he left six months,’ found in the instrument, is a limitation upon the right of the holder to demand payment until the expiration of that time. His power to make a lawful demand was suspended during this time. When the money was deposited it became the property of the bank, and it became the debtor of the depositor to the amount stated in the certificate. If left longer than six months, it would not draw interest after that time, unless a demand was made for its payment and refusal to pay, because it is expressly stipulated that it shall not draw interest after maturity.” Notwithstanding thé authorities just referred to, counsel for plaintiff insists that his client is entitled to interest by virtue of the terms of the certificate, and in support of that contention especially refers to Payne v. Clark, 23 Mo. 259; Cordell v. First National Bank, 64 Mo. 600; Bank of Commerce v. Harrison, 11 N. M. 60, 66 Pac. 460; Hillsinger v. Georgia Railroad Bank, 108 Ga. 357, 33 S. E. 985, 75 Am. St. Rep. 42; and one or two other eases based upon certificates of deposit like those involved in the cases just cited. The theory upon which the decisions in the foregoing eases are based is made quite clear in Payne v. Clark, supra. The cer — 509 — tificate of deposit involved in that case reads as follows: “L. P. Payne has deposited in this office one thousand and fourteen dollars (in funds as below,) payable to the order of himself, on return of this certificate sixty days after date, with interest at the rate of six per cent, per annum. Then follows a statement showing the character of the funds deposited. In that ease the court held that the certificate did not mature — that is, was not payable — until the expiration of 60 days, and then only upon demand by the payee or by his order. In other words, the court held that a demand for payment could not legally have been made until the 60 days had expired, and that the certificate did not mature until a demand for payment was actually made after the 60-day period. It was therefore held that the bank was required to pay interest at the rate specified in the certificate until a demand for payment was actually made. The case we are dealing with here is, however, quite different. The certificate in the case at bar provides “no interest will be paid after maturity,” and, further, that interest will be paid “to maturity only.” The contract, therefore, is that interest will not be paid after maturity, and it expressly is further 2 stated that it will be paid only to maturity. Such being the contract of the parties, this court is powerless to modify its terms, or to require either party to do something contrary to such terms, unless there was a modification of the terms, or unless a new contract was entered into between the bank and the plaintiff respecting payment of interest. Whether there was a modification of the terms of the certificate respecting the payment of interest, or whether a new agreement was entered into whereby the bank agreed to pay interest, is a question of fact upon which we express no opinion. Moreover, the evidence in that regard must be limited to the allegations of the complaint. It only remains to refer to some of the instructions of the court which were excepted to, and the giving of which.is assigned as error. — 510 — The court, after stating the pleadings, charged the jury as follows: “That, gentlemen of the jury, then leaves the issues for you to determine (a) whether or not the certificate of deposit issued by defendant to plaintiff limited the time for which interest should be paid to six months; (b) whether or not the defendant held the said ten thousand dollars in readiness to pay the plaintiff, and that the plaintiff could have withdrawn the said sum of money from the said bank at any time after the expiration of six months from the date of its deposit; (c) whether or not there was a subsequent agreement, either express or implied, that said sum of money should remain for an additional six months after the expiration of the six months set forth in the certificate of deposit.” It is manifest that the court erred in submitting proposition “a” to the jury. In doing that the court required the jury to do what clearly, the law requires of the court. The legal effect of written instruments is necessarily a question of law, and hence is one that must be determined by 3 the court. To that rule there is no exception, not even in cases where the facts respecting the terms of the written instruments are in dispute, which arise sometimes where the written instruments have been lost. In the latter class of eases the jury may find what the terms of the 4 instruments were, but the court must, nevertheless, determine. the legal effect of the instruments when the terms are found and determined. It is, however, insisted that in view that the court instructed the jury that the certificate of deposit constituted the contract between the parties which could not be varied by parol evidence, and for the reason that the provisions of the certificate are plain, therefore the court committed no error in that regard. That statement manifestly overlooks the contention of plaintiff’s counsel. His contention in the court below was, and now is, that by the terms of the certificate it did not become due and payable until a demand for its payment was made, and hence it continued to draw the interest specified therein until such demand was made. In other words, that the certificate, by its terms, did not mature until demand for payment was made and hence continued — 511 — to draw interest. If, therefore, that was the construction placed upon the certificate by plaintiff’s counsel, why could not a jury give it the same construction ? Indeed, that is just what, under the instructions of the court, the jury were permitted to do, and, in view that they found the interest as contended for by plaintiff’s counsel, it is quite probable that that is what was done. In view of counsel’s contention, therefore, it was manifest error to submit the question to the jury whether the certificate limited the time for which interest could be collected to six months. Had the jury followed the language of the certificate they would fiave found only six months’ interest. How, then, can any one say that the jury may not have misconstrued the certificate 1 There is not only nothing- upon which such an inference can be based, but, in view of the contention of plaintiff’s counsel, the inference is precisely to the contrary. As to proposition “b” we find no such issue tendered by the pleadings. There was no claim that the money was withheld after demand therefor was made. It is not 5 necessary to refer further to proposition “b.” — 7 — Proposition “c” was a question of fact to be determined by the jury. The difficulty with the court’s statement, however, is that it is too broad. The complaint was predicated upon an express contract to pay interest and not upon an implied one. It is axiomatic that where an express 6 contract' exists one may not be implied. 2 Elliott, Contracts, § 1360; 9 Cyc. 242. Ordinarily, therefore, where the plaintiff seeks to recover upon an express contract he cannot rely upon an implied one. The rule has special application to cases where the recovery of interest is sought upon bank deposits. The law in that regard is that, ordinarily at least, interest is not recoverable upon deposits except by special agreement or after demand and refusal to pay. 1 Morse, Banks, etc. (4th Ed.) § 309. Moreover, in this case the rate of interest sought to be recovered 7 was not the legal rate, but a rate which it is alleged was the subject of special contract. It is, however, urged that although the court may have erred in submitting the — 512 — foregoing ■ proposition, yet it did not constitute prejudicial error to do so. I cannot conceive bow, in a law case, this court can sustain such a contention. I have set forth the controlling allegations of the complaint. In addition to the fact that the complaint proceeded upon the theory of an express agreement or contract, the court permitted the jury to proceed as upon an implied one. While, in my judgment, there is no substantial evidence which sustains the allegations of the complaint,'yet there is some evidence from which the jury might have found an implied promise to pay interest. In view of that, it was manifest error in this 8 case to submit that question to the jury. It is, however, urged that there is ample evidence to sustain the finding of the jury. While I do not so read the record, yet, if that were conceded, it would in no way cure the error to which I have referred. This is a law case, and hence unless the evidence supports the allegations of the complaint the verdict cannot be sustained, although there might be evidence supporting the findings in plaintiff’s favor if 9 the allegations of the complaint had been different and were subject to amendment after introduction of evidence. This court has not original jurisdiction in such cases, and cannot enter judgment merely because it thinks one or the other of the parties is entitled to prevail. In view of what has been said, it is not necessary to discuss any of the other errors assigned. All of these alleged errors are necessarily covered by what has already been said, and hence, although the cause is remanded, the court will easily avoid those alleged errors. From what has been said it follows that the judgment should be, and it accordingly is, reversed, and the cause is remanded to the district court of Carbon county, with directions to grant a new trial, and to proceed with the case in accordance with the views herein expressed. Appellant to recover costs. CORFMAN, C. J., and WEBER and THURMAN, JJ., concur.