53 Kan. 480 | Kan. | 1894
The opinion of the court was delivered by
As against the ruling of the trial court, the case of Long v. Straus, 107 Ind. 94, is cited. The action in that case was upon ;a written instrument in the nature of a certificate of deposit jproperly signed by the party executing the same. It was ’more than a mere receipt, for it embodied an agreement. Elliott, J., speaking for the court, said: “The instrument declared on is a contract. It is a written contract. It cannot be contradicted or varied by a parol evidence.” “It is by no means certain whether it is not a regular certificate of deposit.” “As the contract is a written one, not subject to variation by parol evidence, the agreement to repay the money must exist in it or not exist at all.” Many other cases are referred to of similar kind, but it would not do to hold that an entry on a deposit slip or in a pass book is such a written contract that all oral negotiations and stipulations are merged in the receipt or writing. (Bank v. Clark, 32 N. E. Rep. 38.)
It is further claimed, that within the decision of Waffle v. Short, 25 Kas. 503, there was an open, running and mutual •.account between the parties, and that the statute of limitation did not commence to run until after the payment of the check -of March 17, 1890. The bill of particulars of the bank did toot state any mutual or other account. The action was brought to recover $200 upon the check. The answer and set-off alleged that the pass book was balanced on December 15, 1885. On that date, Talcott made a demand upon the bank for the balance he claimed to be due. The statute began to run from the demand. He did not follow up his demand for more than four years — not until his claim was barred. After the demand of Talcott, on the 15th of December, 1885, and after the statute of limitation had fully run between the parties, there was no open, running or mutual account existing between them. It is true that Talcott alleged that he applied
The judgment of the district court will be affirmed.