Lamar, Taylor & Riley Drug Co. v. First National Bank

127 Ga. 448 | Ga. | 1907

Evans, J.

1-3. A certificate of deposit issued by a bank, certifying that the depositor has deposited a stated sum of money subject to his order, is the equivalent of a promissory note payable on demand. Lynch v. Goldsmith, 64 Ga. 42. Where the certificate of deposit recites that the money is deposited to the credit of a third person, subject to the cheek of such third person, and no control over it is reserved to the depositor, it is equivalent to a promise by the bank to pay such third person upon presentation of the certificate of deposit. The recital that a particular person made the actual deposit of the money to the credit of another does not alter the legal character of the certificate, but amounts to a mere statement of the source from which the bank received the money. In such a case the beneficiary of the deposit is the payee, who may maintain an action against the bank for an unwarranted refusal to pay him the funds-deposited to his credit. But if the bank, in its ceitificate of deposit, stipulates with the depositor that the money is received on deposit to the credit of a third person, and subject to the cheek of such third person on certain conditions, the promise of the bank' to pay such third person is not absolute, but depends upon the contingencies expressed in the certificate. We are not concerned at present with the relative rights and liabilities of Weslosky and Sale to the bank. The payee of the certificate is the party seeking to compel the bank to pay the money to it. Before it can recover the money it must allege and prove that it is entitled to receive the same. An undertaking to pay a definite sum of money on demand, provided a certain act is done, is not enforceable until the condition on which the money is payable has been performed. Baker v. Tillman, 84 Ga. 401. The bank engaged to hold this money subject to the check of the plaintiff, on two conditions: (1) On the completion of the inventory of the Sale Davis branch of the C. M. Shivers Drug Company; (2) “Notice of the completion and acceptance of the inventory to be given the First National Bank by Morris Weslosky and T. D. Sale.” Treating the certificate of deposit as the equivalent of a promissory note by the bank, as maker, to the drug company as payee, the bank is only liable thereon upon the performance of the conditions therein named. The petition alleged that “the conditions of said certificate of deposit have been fully complied with;” and this allegation was met by a special demurrer calling for a specific allegation that the conditions precedent to its liability had been performed in the manner stipulated. The bank was not liable until Weslosky and Sale notified it of the completion and acceptance of the inventory of the Sale Davis branch of the C. M. Shivers Drug Company. It was entitled to a specific allegation in the petition of every essential fact upon which its liability to the plaintiff depended. The giving of the notice was one of the essentials of liability, and the plaintiff was bound to allege it when called for by special demurrer. The other allegations of the petition do not excuse the giving of the notice. It may be that Weslosky and . Sale arbitrarily, or without sufficient'reason, refused, or negligently failed, to give this notice to the bank. Tf this be true, the plaintiff, in an appropriate proceeding against Weslosky and Sale, might secure a judgment or decree compelling them to give the notice so as to render the bank liable to the drug company on its certificate'. But the bank can not be forced, in a proceeding •where Weslosky and Sale are not parties, and where they would, not be bound by the judgment, ’ to litigate this matter with the' plaintiff. The bank is sought to be held liable on its own obligation, and it is entitled to an allegation of all the essential elements necessary to impose liability by the terms of its obligation. This, ground of the special demurrer was therefore properly sustained-

4. The plaintiff in error also complains that the demurrers to' the petition were sustained at the appearance term, during the absence of his counsel. The judge is required to call all cases on. the appearance docket at the first term, and hear and decide all objections made to the sufficiency of the petition. Civil Code,. §5045. A litigant should personally or by counsel attend each stage of his case, where the court is required to take action. The-voluntary-absence'of either furnishes no hindrance for the orderly action of the court. A trial judge before whom a demurrer to a. petition has been argued at the first term may render judgment upon the demurrer at that term in the absence (without leave" of the court) of the plaintiff of his counsel, and without giving time to the plaintiff to amend his petition. Ripley v. Eady, 106 Ga. 422. He may provide, in his order sustaining a. special demurrer, that the plaintiff have an opportunity to amend so as to meet the special demurrer; but he is not bound to do so,, ■especially where no request is made for time in which to amend.

Judgment affirmed.

All the Justices concur, except Fish, C. J.,. absent.