95 Neb. 53 | Neb. | 1914
This is an action to recover a balance of $1,678.16 on five promissory notes. Defendant is maker and the Citizens State Bank of Petersburg, plaintiff, is payee. The suit was commenced February 4, 1911. An amended answer was filed June 5, 1911. It contains a general denial, alleges that defendant was a depositor of plaintiff with an unclosed bank account, and demands judgment for deposits and for conversion of deposits. The reply was a general denial. The case was tried to a jury. The execution and delivery of the notes were proved without contradiction. A demurrer to evidence in support of the cross-demands of defendant was interposed, on the ground that his allegations do not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer, and directed a verdict in favor of plaintiff for $1,754.94. Defendant appeals.
Did the trial court err in sustaining the demurrer? Defendant’s position below and on appeal is indicated by ■ the following extract from his brief: “The ruling of the
Where the nature of a bank deposit is not shown, the law will presume that it is a general one. Nichols v. State, 46 Neb. 715. A general deposit creates between the bank and the depositor the relation of debtor and creditor. State v. Bartley, 39 Neb. 353; Nehawka Bank v. Ingersoll, 2 Neb. (Unof.) 617. Under a general deposit, the title to the identical money deposited passes to the bank. Seward County v. Cattle, 14 Neb. 144. A bank is not required to return identical funds deposited subject to check, but discharges its obligation as debtor by returning the equivalent in money upon demand. Union Savings Bank & Trust Co. v. Indianapolis Lounge Co., 20 Ind. App. 325. For non-payment of a general deposit, a solvent bank is not in default, or guilty of conversion, or justly required
Standing alone, the general allegation of conversion upon which defendant relies might be sufficient in pleading a tort, as was held in Sanford v. Jensen, 49 Neb. 766; but, in an answer pleading a set-off for deposits in a suit on a note, a general allegation that the bank converted the deposits to its own use must yield to specific allegations showing a demand Avas necessary, but not made.
The only demand pleaded Avas made “prior to the time of the filing of the amended answer.” There is no plea that it had been made when plaintiff brought this suit. Under section 104 of the code, providing that “a set-off can only be pleaded in an action founded on contract, and must be a cause of action arising upon contract, or ascertained by the decision of a court,” the rule is: “A
In pleading a set-off in an action on a note, defendant should conform to the rules by which the sufficiency of plaintiff’s petition would be tested, if assailed by demurrer. Peck v. Trumbull, 12 Neb. 133; Dale v. Hunneman, 12 Neb. 221; Bliss, Code Pleading (3d ed.) sec. 367. The set-off pleaded does not conform to the principle stated. It is not shown that defendant, when this suit was commenced, could have maintained against plaintiff an action for deposits. The law has been stated in these words: “The agreement of the bank with the depositor, as distinct and valid as if written and executed under the seal of each of the parties, is only to pay upon demand.” Morse, Banks and Banking (4th ed.), sec. 322; Missouri P. R. Co. v. Continental Nat. Bank, 212 Mo. 505, 17 L. R. A. n. s. 994, 111 S. W. 574. The debt of a solvent bank to a depositor for general deposits is not due until a demand has been made. That is the contract implied by their relation, and a suit for such deposits, like an action on an unmatured note, cannot be maintained until the debt is due. A proper demand before this suit was commenced, which is a part of the set-off, is not pleaded.
Defendant, however, insists that plaintiff waived demand by the general denial in its reply. This position is untenable. Under the code an answer containing a general denial, but not challenging the petition on the ground that it fails to state facts sufficient to constitute a cause of action, does not waive that objection. Code, sec. 96. On principle the same rule applies to an answer containing an affirmative plea in the nature of a set-off, and such an objection may be made by demurrer to evidence at any stage of the proceeding. Brugman v. Burr, 30 Neb. 406; Curtis & Co. v. Cutler, 7 Neb. 315; Ball v.
Ogden v. Warren, 36 Neb. 715, holding that, “where a defendant lawfully in the possession of property denies the title and right of possession of the owners, no demand is necessary,” does not apply to a case like the present, where the parties have provided by contract that the debt shall only become due upon demand.
No error has been found in the record, and the judgment is
Affirmed.