162 A. 825 | Pa. | 1932
Argued April 22, 1932. Plaintiff is secretary of banking, in possession of the Merchants Savings and Trust Company for purposes of liquidation under the Banking Act of 1923 P. L. 809 as amended. Among the assets was a certificate of deposit issued by defendant to a payee named Breitwieser, and endorsed by him; payment was refused and this suit followed. The certificate is in these word:
"The Fifth Avenue Bank of Pittsburgh, Pa.
"Int. $206.25
"13,750.00 "Pittsburgh, Pa., June 10, 1931.
"13,956.25
"Edw. Breitwieser has deposited in this Bank exactly Thirteen Thousand Seven Hundred Fifty Dollars exactly, payable to the order of Himself, 6 month after date on the return of this Certificate properly endorsed with interest only until maturity at 3 per cent per annum. Not subject to check. Edw. C. Bietenduefel, Cashier.
"Endorsements on the back of above Certificate:
"Edw. Breitwieser
"For deposit to the credit of William D. Gordon, Secretary of Banking, in possession of the Merchants Saving and Trust Company, Pittsburg, Pa.
"Walter C. Brenneis, Special Deputy."
Defendant filed an affidavit of defense averring that on or about the date of the certicate, the payee, Breitwieser, borrowed from defendant the sum of $13,750 on his collateral note payable on demand; that on November 10th defendant demanded payment and that Breitwieser refused to pay, whereupon defendant, before the maturity of the certificate, appropriated the deposit *326 represented by it and so applied the fund to the payment of his note. A rule for judgment for want of a sufficient affidavit of defense was taken on the ground that the certificate was a negotiable instrument and that plaintiff was a holder in due course. The learned court below held that the certificate was not negotiable and discharged the rule. Plaintiff appeals.
While certificates of deposit appear to vary greatly in form, this is the first time, since the enactment of the Negotiable Instruments Law, that it has become necessary to pass on the negotiability of such an instrument. It is a subsisting chose in action representing the fund which it describes. Without inquiring whether it is true, as has been said, that Pennsylvania is the only state in which a certificate of deposit is held not to be negotiable, it is a fact that in Patterson v. Poindexter, 6 W. S. 227 (followed in Charnley v. Dulles, 8 W. S. 353; Lebanon v. Mangan,
Since the decision of Patterson v. Poindexter and the cases following it, the legislature has specified what shall constitute a negotiable instrument: Act of May 16, 1901 P. L. 194. Many instruments which would not *327
have been negotiable in the sense in which we are considering the term, prior to the Negotiable Instruments Law, are negotiable according to its provisions. The question must, therefore, now be considered in the light of the statute, keeping in mind that we are dealing with a law, with slight variations, in force all over the country and enacted, in this and in other states, for the express purpose of obtaining uniformity in the law of negotiable instruments in the general interest of commerce. The certificate in this case is negotiable within the requirements of the first ten sections. It is a written instrument, signed on behalf of defendant, containing an unconditional promise to pay the amount of the deposit to the order of the named depositor at a fixed time with interest specified. Payment is not rendered contingent by the necessity of returning the certificate, because the law implies the duty to return the certificate, just as it implies the duty to return a note; the phrase 'not subject to check' is surplusage because the express terms of the certificate are inconsistent with a checking account. Both parties refer to Fallon v. Safety Bank and Trust Co.,
The order discharging the rule for judgment is reversed and the record is remitted with directions to enter judgment against the defendant for such sum as to right and justice may belong unless other legal or equitable cause be shown why such judgment should not be so entered.