39 Ind. 109 | Ind. | 1872
The only questions made in this case arise upon the pleadings. It is assigned for error by the appellants, who were the defendants in the common pleas, that that court erred in overruling the demurrer to the complaint, and also in sustaining the demurrers to the paragraphs of the answer.
The complaint was by Solomon Davis, surviving partner of the firm of Davis & Stuckey, against William McEwen, Archibald McEwen, Gideon McEwen, and Lawrence B. Stuckey, administrator of the estate of Samuel Stuckey, the deceased partner of Davis. It is alleged in the complaint that on or about the 26th of March, 1870, and to the time of the death of Stuckey, the plaintiff and said Stuckey
Conceding that the money of the firm of Stuckey & Davis, deposited by Stuckey in his own name, might properly be demanded by Davis, as the surviving partner, which we do concede, was he bound to draw it out on his check or furnish other written evidence of its payment, or were the bankers bound to depart from the usual and customary mode of doing such business, and pay the money on his oral order or demand? There is no allegation that Davis offered to furnish any evidence of the payment of the money by receipt or by drawing a check for the amount, when it was demanded that the same should be paid on the note held by Walker; nor is there any evidence that Davis demanded the payment of the balance of the deposit to himself, and offered to give any such evidence of payment, although it is stated that the McEwens failed to pay it on his check or order or otherwise. When money is deposited with a banker It is payable on demand, at the bank, unless some other agreement has been made with reference to its payment. The banker is not required to hunt up the depositor and pay him the money, as an ordinary debtor is bound to do with his creditor. The
The note was not in the bank for payment, but was in the hands of Walker. All the money in the bank to the credit of Stuckey was not sufficient to pay off the note of Walker; and it is not shown that it was proposed to surrender the note to the bankers, or to give them any other evidence of the payment of the money. As we have seen, it is not alleged that Davis ever demanded the money at the bank. As the banker is entitled to some written evidence of the payment, we think the fact that it was offered in some form should be shown in the complaint.
These views lead us to the conclusion that the complaint was insufficient, and that the demurrer to it should have been sustained. As the remaining questions may again arise in the case, we will examine the answers, with a view to the decision of the remaining questions.
In the first paragraph of the answer of the McEwens, it is alleged that on the 23d day of January, 1869, William Mc-Ewen sold to Stuckey a pair of mules, for five hundred and fifty dollars, for which Stuckey gave his promissory note to McEwen, a copy of which is filed with the complaint; that the mules were, traded for two horses which were put into the pretended partnership, and the firm got the benefit of them, the same having been sold by them for seven hun
In the second paragraph it is stated, that Stuckey made his note to William McEwen for five hundred and fifty dollars, payable at a bank named; that McEwen sold and indorsed it to said National Branch Bank at Madison; that when the same became due, to save it from protest, Stuckey requested these defendants to pay it, and that they should be paid out of money that he would in a few days place in defendants’ hands; that defendants accordingly took up the note; and that afterward Stuckey placed in defendants’ hands said sum of eighteen hundred dollars, as his own private money, stating then that he had no 'time or he would take up said note so paid for him by defendants, and that said money should be applied to the payment of said note; that he would call in a few days and take the said deposit out; that it was the agreement that said money should be first applied to the payment of said note; that by mistake all of the said money was paid out on debts of Davis & Stuckey, .at the request of said administrator of said Stuckey, except the sum of-dollars, which was not enough to satisfy said note and interest, but that a balance would still be due to the defendants. They also allege that they had no notice of any interest of Davis in said deposit at the time the same was
The third paragraph is like the second, except that it alleges that the note of Stuckey was paid by the deposit of the money, it having been previously paid by the said defendants to said National Branch Bank, and taken up by them, with the agreement that it should be so paid by Stuckey, by the application to its satisfaction of a part of said deposit; that when this was done the defendants had no knowledge of any interest of Davis in said deposit. They also allege the overpayment of the deposit, as in the second paragraph.
The same author, to whose work we have already referred, ■says: “The bank will always be justified in making payments upon orders of the person who brought the deposit, or upon orders of any person whom he designates as competent to control it, until it has notice that the ownership is claimed by somebody else adversely to either of these parties. >¡í & •%. ^ % ;¡í Until the bank is notified by somebody else of an adverse claim, it will be protected in treating the fund as that of the apparent depositor. Its payments upon his orders will be valid discharges. Any obligations which it has voluntarily assumed on the strength of his ownership, as by certification of his check or otherwise, or any obligation which has been iimposed upon it by operation of law, as by garnishee process, may be secured and discharged by retention in its possession of a sufficient sum from the fund to meet, and acquit the same.” Morse Banks and Banking, 274.
As, according to the first paragraph of the answer, Stuckey directed the payment of his note, which had been transferred to the bank at Madison, out of the money deposited, and it was accordingly paid before the McEwens, the bankers, had any notice of any interest of Davis in the money deposited, it seems to us that, according to the foregoing authority, the paragraph was good.
'The second and third paragraphs differ from the first, in
These defences seem also to be good according to the above authority.
The judgment is reversed, with costs; and the cause is remanded.