McIntyre v. Farmers & Merchants' Bank

Grant, J.

(after stating the facts). 1. We cannot concur in the contention that the proofs conclusively showed that the money belonged to Mrs. Dunning. The entire bank account, extending from April, 1893, to February 2, 1896, was in evidence, and stood in the name of Mr. Dunning. He did not swear that all these deposits belonged to his wife. He said they were “principally hers.” When asked if he would swear that he never made a deposit of his own money, he replied: “Not exactly. The money that was deposited there was deposited for her.” Nearly all the investments from which she received an income were made with money received from him. The income from^ her inyestments was not sufficient to account for all the deposits. From these facts, as well as others, it is clear that the testimony of Mr. and Mrs. Dunning that the money was hers, and was deposited for her, was not conclusive. The facts were in apparent con *257 tradiction of their testimony. In such case the question was for the jury.

2. While there was no direct testimony that she gave money to him which she received from her investments, yet the facts and circumstances would justify the conclusion that she gave it to him to be used as his own.

3. There was evidence from which the jury might very properly infer that he, with her knowledge and consent, mingled his own funds with hers in the bank, with the understanding that the entire fund was to be treated as his own. If this were so, then the fund was subject to garnishment for his debt. In reply to the question whether he mingled his own money with his wife’s, he replied, “Not to any extent.”

4. The checks did not operate as equitable assignments of the fund. Grammel v. Carmer, 55 Mich. 201 ( 54 Am. Rep. 363 ); 2 Am. & Eng. Enc. Law (2d Ed.), 1065. The rule is there stated as follows:

“The doctrine which prevails in England, and is sustained by the weight of authority in the United States, is that an unaccepted check, drawn in the ordinary form, not describing any particular fund, or using words of transfer of the whole or any part of any amount standing to the credit of the drawer, is of the same legal effect as a bill of exchange, and does not amount to an assignment, at law or in equity, of the money to the credit of the holder, but is simply an order which may be countermanded, and the payment of which may be forbidden by the drawer, at any time before it is actually cashed.”

It follows that the writ of garnishment, having been served before the presentation of the checks, entitled the plaintiff to have the fund applied upon his judgment.

The judgment is affirmed.

The other Justices concurred.