DocketNumber: No. 10934. [fn*]
Citation Numbers: 270 S.W. 1095
Judges: BUCK, J.
Filed Date: 2/7/1925
Status: Precedential
Modified Date: 1/13/2023
If the passbook or deposit book issued by the bank constituted a contract in writing, under article 5688, subd. 1, of the Revised Statutes, then the four years' statute of limitation would apply, and it would become a question of fact as to whether defendant was a partner in said banking institution, or had estopped himself to deny that he was such partner, in which case the judgment for defendant on the pleadings was not justified. Anderson v. Walker, 49 S.W. 937-949, was an action on a county treasurer's bond to recover on a defalcation. The sureties, having filed a cross-action against the bank, alleged in substance that the bank had certified that the treasurer had according to the bank's books an accrued balance of $2,200, which certificate was in writing over the signature of the president of the bank. This statement was pleaded as an estoppel against the bank. The Court of Civil Appeals held, in discussing the legal effect of the statement so rendered by the bank, that:
"The written statement given by the bank to the finance committee was not a contract fixing the rights of the county and the bank. It occupies no higher plane than would a verbal statement or admission, and, apart from the question of estoppel, was not conclusive, and could be explained or contradicted."
The Supreme Court, in passing upon this case, in
"It is doubtless true that conduct of the bank is here alleged such as would be sufficient to estop it from denying the truth of its representation in favor of any one entitled to rely upon its truth who has been induced, by reliance upon it, to so act or refrain from acting as to place himself in a situation to suffer loss or damage, if the bank were now allowed to show that the statement was false. But, whatever of moral wrong or fraudulent purpose the conduct may have involved, only one who will suffer legal injury if its falsity be now established can assert an estoppel against proof of the truth. The general principles governing the subject are so well settled, and have been so often stated by this court, that there is no need to repeat them here. All that is necessary is to ascertain whether or not it is shown by the plea that the county is in a position to demand that the bank be held to the statement as if it had been true, notwithstanding its offer to show that it was false. There is no pretense that any estoppel arose in favor of the sureties; their contention being that it existed in favor of the county, and that the resulting right inures to their benefit by subrogation. Whether or not this last position be sound, even if there were an estoppel in favor of the county, is a question we need not consider, since we are of the opinion that no estoppel is shown by the plea. * * *
"It is an undisputed fact that a credit to the county was entered upon the bank books, and this, prima facie, represented so much money on deposit belonging to the county. It is true that this was only evidence of the fact, and that it was open to explanation. * * * The entry did not control the understanding under which it was made, and conferred no greater right than the parties to the transaction intended by it. Evidence was admissible to show the whole of the transaction, and the purposes of the parties are to be deduced from the whole of such evidence."
In the case of Ballard v. Murphy (Tex.App.)
In O'Connor v. Koch,
In Stacy v. Parker,
"There was no definite agreement with regard to the payment of the $671.39. Parker testified that, as to this, Stacy was not able to pay him, and he agreed to `carry the same' for him, but does not say for how long; nor is there anything in the evidence as to any agreement for any definite credit for this amount. From the evidence, viewing it in the most favorable light for appellee, we find that this amount was an ordinary stated account, due, at least, on demand. Stacy was in bad health and insolvent. It is not shown that Parker ever at any time made any demand upon Stacy for payment of this indebtedness until after the insolvency of the insurance company, as hereinafter set out."
In Glover v. Storrie,
"We are also still of the opinion that the assessment comes within the decision of the case of Mellinger v. City of Houston,
In 3 R.C.L. § 197, p. 569, it is said:
"Actions to recover general deposits evidenced by entries in the depositor's passbook have been held to be governed by the statute relating to actions on oral contracts, and not by the statute relating to action on written contracts, as the pass book is not a written contract, though this has been denied."
See Talcott v. Bank,
The only case cited in 3 R.C.L. p. 569, holding to the rule contrary to that stated in the text is Schaluclky v. Field,
"In Jassoy v. Horn,
But we believe, under the great preponderance of the decisions in the several jurisdictions, especially in Texas, that an ordinary bank book, not signed by any one authorized to bind the bank, and not containing a definite promise to pay, does not constitute an instrument in writing, and the *Page 1098 liability of the bank is determined by the two years' statute of limitation (Rev. St. art. 5687, subd. 4). See Cureton Harris on Bank Laws of Texas, p. 102, §§ 72-76, inclusive, and cases there cited.
In 1 R.C.L. p. 214, § 12, it is said:
"It is well settled that the entry of the debits and credits in a depositor's passbook by a banking institution, striking a balance, and then delivering the book to the customer with his canceled checks, constitutes a rendition of account, so that the retention of the book so balanced by the customer for an unreasonable time, without objection to the account rendered, will constitute an account stated."
An ordinary deposit with the bank usually has the effect simply of creating the relationship of debtor and creditor. The mere notation in a passbook of the transaction does not change or in any manner alter this relationship nor confer any greater right upon the bank's customer as respects the liability of the bank than existed before the notation of such transaction. The passbook is merely evidence of the transaction. In 3 R.C.L. p. 533, § 163, it is said:
"It is within common knowledge that the object of a passbook is to inform the depositor from time to time of the condition of his account as it appears upon 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. In this way it operates to protect him against the carelessness or fraud of the bank. The sending of his passbook to be written up and be returned with the vouchers is therefore in effect a demand to know what the bank claims to be the state of his account. And the return of the book, with the vouchers, is the answer to that demand, and in effect imports a request of the bank that the depositor will, in proper time, examine the account so rendered, and either sanction or repudiate it."
See National Dredging Co. v. Bank, 6 Pennewill (Del.) 580,
In 3 R.C.L. p. 531, § 160, it is said:
"An entry in the passbook, however, is not a written contract within the rule that parol evidence is inadmissible to vary a written contract, but it is in the nature of a receipt and is prima facie evidence that the amount credited was received by the bank, and the entries may be explained or contradicted."
In paragraph 16, p. 532, of the same volume of R.C.L., it is held that the passbook is merely evidence of "an account stated."
From these authorities, and others that might be cited, we are of the opinion that any cause of action that plaintiff below might have had against defendant was barred by the two years' statute of limitation, and that the judgment below must be affirmed, and it is so ordered.
Appellant urges that Williams v. State,
But we did not think this case, cited by appellant in his brief, was pertinent to the decision of the questions presented in the instant case. In Williams v. State, supra, the court merely decided that a duplicate deposit slip could be the subject of forgery, citing the case of State v. Jackson, by Supreme Court of Missouri,
"He is guilty of forgery who, without lawful authority, and with intent to injure or defraud, shall make a false instrument in writing, purporting to be the act of another, in such manner that the false instrument so made would (if the same were true) have created, increased, diminished, discharged or defeated any pecuniary obligation, or would have transferred, or in any manner have affected any property whatever." Penal Code, art. 924.
"`Pecuniary obligation' means every instrument having money for its object, and every obligation for the breach of which a civil action for damages may be lawfully brought." Penal Code, art. 930.
Article 5688, Rev. Civil Statutes, subd. 1, is as follows:
"There shall be commenced and prosecuted within four years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description: 1. Actions for debt where the indebtedness is evidenced by or founded upon any contract in writing."
We are of the opinion that the notation in the passbook, as pleaded in the instant case, especially since it was not alleged that it was signed by anybody authorized *Page 1099 by the bank so to do, is not a contract in writing binding the bank to pay to the depositor the amount so mentioned. 3 R.C.L. p. 531, § 160.
The motion for rehearing is overruled.