Towle v. Starz , 36 L.R.A. 463 ( 1897 )

BUCK, J.

I dissent. The words “to be 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. The insertion of the words “to be left six months” is a wise provision on the part of the bank, and doubtless adopted as a precautionary measure against runs upon banks in times of great panics. And, thus limiting the time within which its payment could not be enforced, it guards against paying interest upon instruments running for a long time.

To avoid the necessity of hunting up a deposit creditor, the certificate provides that it shall be paid to the order of the depositor himself on the return of the certificate properly indorsed. Of course, the certificate may be legally sold and indorsed, and returned by the assignee or lawful owner and holder. Now, while payment of the certificate in question was suspended for the period of six months from the time the money was left with the bank, it was not payable until presented, and demand made for its payment. I think that this was the intention of the parties to be determined from the face of the instrument. It was left six months, but, if left longer, it was not to draw interest. Money is frequently deposited in banks for better security in keeping, sometimes without drawing interest, but often drawing more or less interest; and I believe it to be a sound principle that such certificates of deposit should be deemed payable only upon presentation and demand of payment, except, perhaps, in cases where the certificate is lost;' and what course should in such event be pursued I express no opinion. This would bring the certificate in question within the provisions of G. S. 1894, § 2231, which reads as follows:

“Upon a promissory note payable on demand a demand made at the expiration of sixty days from the date thereof, without grace, or at any time within that term, shall be deemed to be made within a reasonable time; and any act, neglect, or other thing, which by the rules of law and the customs of merchants, is deemed equivalent to a presentment and demand on a note payable at a fixed time or which would dispense with such presentment and demand, if it occurs at or within said term of sixty days, shall be deemed a dishonor thereof, and shall authorize the holder of such note to give notice of the dishonor to the indorser as upon a presentment to the promisor, and his refusal or neglect to pay the, same. No presentment of such note to the promisor and demand of payment shall charge the indorser, unless made on or before the last day of said term of sixty days.”

A demand could not be made until the expiration of six months, but from that date there remained sixty days in which the certificate might become dishonored by presentation, demand, and notice of nonpayment. This was done in the case at bar, at nearly the earliest moment possible. The plaintiff therefore was entitled to maintain his action upon the facts appearing in the record, and, as the trial court erred in its ruling, the order denying the motion for a new trial ought to be reversed.