Bingham v. Newtown Bank

118 N.E. 318, 67 Ind. App. 266, 1918 Ind. App. LEXIS 159

• Court: Indiana Court of Appeals
• Decided: January 8, 1918
• Docket: No. 9,452
• Status: Published

Opinion

Ibach, C. J.

Appellant brought this action against

the Newtown Bank to recover upon a certificate of deposit as follows:

‘ ‘ Certificate of Deposit.

“Newtown Bank $245.00 “Newtown, Indiana, October 2,1912.

“This certifies that Columbia Casualty Company has deposited in this bank two hundred and forty-five and no/100 dollars, payable to the order of self, due August 5, 1913, on the return of this certificate properly endorsed.

“T. C. Shultz, Cashier.”

Rudolph C. Keller was admitted as a party defendant upon his intervening petition, and he filed a cross-complaint claiming to be the owner of the certificate. Various issues were joined on the complaint and on the cross-complaint. Ó¡n trial of the issues the court found that Keller was the owner of said certificate of deposit and that neither appellant nor the New-town Bank had any interest therein; that he should have judgment against the bank for $271.53, and there was judgment accordingly.

The errors assigned and relied on for reversal are the overruling of appellant’s demurrer to the second paragraph of reply of appellee Keller to the second and third paragraphs oj: appellant’s answer to the cross-complaint of said Keller, and the overruling of appellant’s motion for a new trial.

The first assigned error raises the question of the negotiability of the instrument sued on. Appellant very earnestly contends that such instrument is nonnegotiable under the law merchant. It is claimed that it is not negotiable as an inland bill of exchange, as it “was not by its terms payable in a bank of Indiana,” and that the words “on return of this certificate properly endorsed” do not fix the place of payment of said certificate and are mere surplusage, otherwise the time would be rendered indefinite and it would not be negotiable on account of such indefiniteness of time of paymenti On the other hand, appellee contends that the. instrument is negotiable;'that it definitely names the time of payment, and there is no condition of uncertainty as to the obligation imposed upon the maker to pay the sum due; that the paper was issued by a bank in this state and it cannot be doubted that Indiana banks have a regular and established place of business, and that the regular and established place of business of the Newtown Bank is located, as the instrument states, at Newtown, Indiana.

1. The decided weight of authority is that a certificate of deposit when made in negotiable form is negotiable, and subject in general to the rules of

negotiable paper. Krieg v. Palmer Nat. Bank (1912), 51 Ind. App. 34, 38, 95 N. E. 613; Miller v. Austen (1851), 13 How. 217, 14 L. Ed. 119; Hatch v. First Nat. Bank, etc. (1900), 94 Me. 348, 47 Atl. 908, 80 Am. St. 401; Birch v. Fisher (1883), 51 Mich. 36, 16 N. W. 220; Matter of Baldwin (1902), 170 N. Y. 156, 63 N. E. 62, 58 L. R. A. 122; Johnson v. Henderson (1877), 76 N. C. 227; Bellows Falls Bank v. Rut-land Co. Bank (1867), 40 Vt. 377; 7 Cyc 535; 5 Am. and Eng. Ency. Law (2d ed.) 805.

2. The fact that the money deposited with the bank was made payable on return of the certificate was not such a contingency' as affected the negotiable character of the instrument. Citizens’ Nat. Bank v. Brown (1887), 45 Ohio St. 39, 42, 11 N. E. 799, 4 Am. St. 526; Hunt v. Divine (1865), 37 Ill. 137; Smilie v. Stevens (1866), 39 Vt. 315; Bellows Falls Bank v. Rutland Co. Bank, supra; Kirkwood v. First Nat. Bank, etc. (1894), 40 Neb. 484, 58 N. W. 1016, 24 L. R. A. 444, 42 Am. St. 683; Cassidy v. First Nat. Bank, etc. (1882), 30 Minn. 86, 14 N. W. 363.

3. In answer to the claim that said certificate was not by its terms payable in a bank of Indiana, while we recognize that by virtue of the statute as it existed at the time this • certificate was issued it was required of promissory notes in order that they be negotiable as inland bills of exchange that they be by their terms payable in a bank of Indiana, yet we are of the opinion that by the terms of the instrument in suit it is brought within the statute as it then existed. It is apparent from the dace of the certificate that it is the obligation of the Newtown Bank of Newtown, Indiana; that it was issued for money deposited in “this bank” and is payable “upon return of the certificate properly endorsed.” In Sanbourn v. Smith (1876), 44 Iowa 152, it was held that a certificate of deposit made payable “on return of the certificate” is payable at the place- where the bank is located. See, also, Krieg v. Palmer Nat. Bank, supra.

4. Having determined that the certificate of deposit sued on is negotiable as an inland bill of exchange it follows that the facts set up in appellee’s reply, viz., that he was a purchaser in good faith, before maturity, for value and without notice of any defenses or claims in due course, was a'sufficient answer to the defense alleged by appellant that the certificate was negotiated without the authority of the payee. The court did not err in overruling the demurrer to said reply.

Since the filing of appellant’s brief in this case the cross-complaint filed by appellee Keller was brought into the record by certiorari and the points under the motion for new trial made upon the theory that no cross-complaint was filed are admitted to have no bearing and will not be considered.

Other points raised under such motion would require a consideration of the evidence which is not before us, and therefore cannot be considered.

No reversible error being shown, the judgment of the trial court is affirmed. Judgment affirmed.

Note. — Reported in 118 N. E. 318.