Masonic Benefit Ass'n v. First State Bank

Anderson, J.,

delivered the opinion of the court.

The appellant, the Masonic Benefit Association of Stringer Grand Lodge, sued appellee, the First Sate Bank of Columbus, in the circuit court of Lowndes county. There was a judgment in favor of appellee, from which appellant prosecutes this appeal.

The. judgment appealed from was rendered alone on the pleadings. The declaration sets out these facts:

That one branch of the business of appellant is insuring the lives of its members; that the appellee is a banking corporation under the laws of this state, and engaged in business in the city of Columbus, Lowndes county. ‘ ‘ That on the 11th day of November, 1902, and for some time prior thereto, plaintiff was a customer and depositor of and with the said defendant, and as such customer and depositor carried on deposit with the said defendant large sums of money, which said deposit was in the name of ‘R. D. Littlejohn, Treasurer’; the said R. I). Littlejohn being a duly elected officer of said plaintiff, and as such having the custody and control of the funds of said plaintiff. That from time to time plaintiff, .through the said R. I). Littleohn, its treasurer and duly authorized agent, made deposit of its funds with the said defendant, and from time to time plaintiff, through the said R. D. Littlejohn, withdraw from the ' custody of said defendant certain of its funds by means of checks and drafts signed ‘R. D. Littlejohn, Treasurer.’ That on the said 11th day of November, 1902, plaintiff then being a customer and depositor of the said defendant, and having funds to its credit with the said defendant largely in excess of the sum of four hundred and twenty-five dollars issued through its treasurer and duly authorized officer and agent, the said R. D. Littlejohn, its check for the sum of four hundred and twenty-five dollars in favor of Mrs. Hannah Roberson, payee. The said check was in the usual form, and was drawn on the account of plaintiff with said defendant, and wás drawn *624 in favor of the payee for the purpose of paying to her the amount therein named as a part of the proceeds of the benefit certificate .held by her deceased husband. That plaintiff attaches hereto, as a part of this declaration, a copy of said check, together with all the memoranda, indorsements, and notations made thereon, and said copy being filed in lieu of the original, which plain-, tiff is unable to file herewith, as the same is beyond the control of plaintiff, being attached to and forming a part of the court files in the case of Hannah Roberson v. Masonic Benefit Association, in the circuit court of the Second District of Tallahatchie county, Mississippi. That on the 20th day of November, 1902, as is evidenced by notations appearing on said check, to wit', ‘Paid 11- — • 20 — 02,’ the said defendant paid said check, and thereupon charged the account of plaintiff with the amount thereon, to wit, the sum of four hundred and twenty-five dollars. That while said check was payable to Mrs. Hannah Roberson, and to none other, and payable to Mrs. Hannah Roberson only upon proper indorsements, the same was paid by the said defendant to another person than the said Mrs. Hannah Roberson, and when it had not been indorsed by the said Mrs. Hannah Roberson, the payee, either by herself or by any one else authorized by her so to do, and that the placing of her name on said check as an indorsement thereof was wholly unauthorized. That it was the duty of the said defendant, the First State Bank of Columbus, Mississippi, before paying the aforesaid check to ascertain the validity and genuineness of the indorsements appearing thereon, and that said defendant owed to this plaintiff the duty, obligation, and responsibility of ascertaining and knowing that the purported indorsement of said check by the said Mrs. Hannah Roberson was valid and genuine, and that, in its failure so to do, defendant paid said check at its peril. That on the 28th day of May, 1906, Hannah Roberson filed suit against this plaintiff to recover the *625 amount claimed by her to be due from this plaintiff to her on account of the aforesaid benefit certificate held by her husband, to satisfy a part of which amount so claimed to be due the aforesaid check was drawn on the defendant in favor of said Hannah Boberson. That on the trial of said cause it developed, and for the first time came to the knowledge of this plaintiff, that the signature and purported indorsement by the said Hannah Boberson was not her act. That said check had not in fact been indorsed by the said Hannah Boberson herself, or by any one authorized by her so to do. That the trial of said cause resulted in a judgment in favor of the said Hannah Boberson and against the said defendant for the sum of four hundred and twenty-five dollars, together with interest amounting to one hundred and six dollars and eleven cents, which said judgment was entered on January 9, 1907, in the circuit court of the Second District of Tallahatchie county, Mississippi. That plaintiff appealed from said judgment to the supreme court of the state of Mississippi, and said court, on April 27, 1908, affirmed the judgment of the lowbr court, and thereupon plaintiff, being compelled so to do, paid and satisfied the said judgment, together with all interest, damages, and costs. That, by reason of the negligent and wrongful act of the said defendant, First State Bank of Columbus, Mississippi, in failing to ascertain the validity and genuineness of the purported indorsement of said check, and by reason of the wrongful act of said defendant in paying the said check to some one other than the payee therein named, when the said check had not been properly indorsed by the payee therein named, and when in fact it had not been indorsed at all by the said payee, the purported indorsement being unauthorized, which it was the duty of the defendant to have discovered, and by reason of the wrongful action of the said defendant in charging to plaintiff’s account the sum of four hundred and twenty-five dollars so paid *626 ■out by tbe said defendant, and in the payment of which said defendant wrongfully applied so much of the funds of plaintiff then on deposit with defendant to the credit of plaintiff, the said defendant, then and there owing to the said plaintiff certain obligations, duties, and responsibilities imposed by law and most wrongfully violated by defendant, was liable to plaintiff in the sum of four hundred and twenty-five dollars.”-

By leave of the court the declaration was amended as follows:

“That by reason of the negligent and wrongful act of said defendant, the First State Bank of Columbus, .Mississippi, in failing to ascertain the validity and genuineness of the purported indorsement of said check, and by reason of the wrongful act of the said defendant in paying the said check to some one other than the payee therein named, when the said cheek had not been properly indorsed by the payee therein named, and when, in fact, it had not been indorsed at all by the said payee, the purported indorsement being unauthorized, which it was the duty of the defendant to have discovered, and by reason of the wrongful action of the said defendant in charging to plaintiff’s account the sum of four hundred and twenty-five dollars so paid out by the said defendant, and in the payment of which said defendant wrongfully applied so much of the funds of plaintiff then on deposit with defendant to the credit of plaintiff, the said defendant, then and there owing to the said plaintiff certain obligations, duties, and responsibilities imposed by law and most wrongfully violated by defendant, was liable to plaintiff in the sum of four hundred and twenty-five dollars, and has ever since continued liable to the said plaintiff in the sum of four hundred and twenty-five dollars on account of the said deposits made by the plaintiff with defendant as hereinbefore set forth, which said sum was and is the balance due by defendant to plaintiff, and never has been checked against by plaintiff in the *627 hands of said defendant, or otherwise withdrawn by' plaintiff from the custody of the defendant.”

The appellee 'pleaded to this declaration the general issue, with notice thereunder, and in addition threé special pleas. The first special plea sets up the bar of the statute of limitations of three years; the second, ‘ ‘ estoppel in pais;” and the third amounts merely to the general issue. The special matter of which notice is given under the general issue is as follows:

“And the said defendant, the First State Bank of Columbus, Mississippi, here gives notice to the said plaintiff that upon the trial of this cause it will offer proof to the effect following, to wit: That on or many years prior to the date of said cheek, to wit, November 11, 1902, one B. D. Littlejohn, now deceased, had kept an account with the defendant bank in the name of ‘B. D. Littlejohn, Treasurer.’ That upon the 20th day of No.vember, 1902, there was presented to the defendant bank a check for the sum of four hundred and twenty-five dollars, payable to the said Hannah Boberson, and signed, ‘B. D. Littlejohn, Treasurer.’ That said check was duly indorsed, having the name of Mrs. Hannah Boberson written on the back thereof. The defendant bank promptly paid the check, as was its duty, and charged the amount thereof to the account of B. D. Littlejohn, Treasurer. That thereafter, on the 1st day of January, 1903, this defendant, upon the application of the said B. D. Littlejohn, treasurer of plaintiff, to furnish bim. with a statement of his balance in defendant’s bank, did furnish to the said B. D. Littlejohn its statement as to the balance there on January 1, 1903, to his credit in defendant’s bank, and that said stetement so rendered on January 1, 1903, to the said B. D. Little-john, treasurer, showed plainly upon its face that this check had been paid as aforesaid, and the amount thereof, to wit, four hundred and twenty-five dollars, duly charged against said account., That thereafter, on the *628 1st days of February, March, April, May, June, July, August, September, and October of the year 1903, this defendant bank gave on each of these days, being nine times, a statement of his account with the said defendant bank, each and every statement showing in the balance brought forward the payment of said sum of four hundred and twenty-five dollars upon said check, and that this defendant bank had charged against said account the amount of said check, to wit, four hundred and twenty-five dollars. That in the month of October or November, 1903, the said R. D. Littlejohn died, and plaintiff, the Masonic Benefit Association, called upon defendant bank, stating that plaintiff was the owner of said account then standing in the name of R. D. Little-john, treasurer, and called upon defendant bank for a statement of the amount thereof. That on November 7, 1903, this defendant bank gave to said Masonic Benefit Association a statement of the account of R. D. Little-john, treasurer, in which said statement appeared, in the balance so presented, the payment of this check of four hundred and twenty-five dollars made to Hannah Roberson. That thus was the account of R. D. Little-john closed on the 7th day of November, 1903, when the said plaintiff took the said account and transferred it to its account with this defendant, and thereafter kept an account with this defendant bank in its own name until the 14th day of November, 1904. That on that day, November 14, 1904, said' plaintiff, the Masonic Benefit Association, called for a statement as to what was due it by this defendant bank, and was on that date, Novemebr 14, 1904, furnished by this defendant with the amount that this defendant bank owed plaintiff. That on said date, November 14, 1904, the said plaintiff, the Masonic Benefit Association, drew out of this defendant bank all of said amount of said account so furnished it on its demand on that day as aforesaid, and has since *629 that time, to wit, November 14, 1904, had no deposit with this defendant.”

Appellant replied to appellee’s special pleas as follows :

“ Replication to First Plea.- It is not true that the ■claim of said plaintiff against the said defendant is barred by section 3099 of the Code of Mississippi, because plaintiff says that the said claim is one based upon the contract in writing, evidenced by the deposit slip and the bank pass book given to and received from the said defendant, constituting the contract between plaintiff and defendant and the liability of defendant to plaintiff, and the further fact that the claim is based upon the payment by the defendant of a check which must have, of necessity, been in writing, and the charging of said cheek improperly to the account of said plaintiff with said defendant, thereby reducing improperly the balance due by defendant to plaintiff on account of said deposits, which said balance has never been checked against by plaintiff in the hands of the said defendant, or otherwise withdrawn by the plaintiff from the custody of said defendant.

‘ ‘ Second Replication to First Plea. It is not true that the claim of the plaintiff against the said defendant is barred by section 3099 of the Code of Mississippi, because plaintiff says that the action was commenced within three years from the time when plaintiff first learned of the improper payment by the said defendant of the said check, and of the improper charging of the said check to the account of the said plaintiff, thereby reducing the balance to plaintiff’s credit with the said defendant, and that the said suit was brought within three years from the time when plaintiff, with all due diligence required of it, could have learned of said improper payment, of the consequent improper charging ■of the amount thereof, and because plaintiff says that no limitation began to run against it and in favor of the *630 said defendant until the discovery by the said plaintiff of the said improper payment and the consequent improper charge, or until it could with due diligence have learned of the said improper payment and the consequent improper charge.

“Replication to Second Plea. It is not true that plaintiff is barred by an estoppel in pais from bringing this suit, in that plaintiff failed and neglected to bring suit or institute any demand for said sum until such lapse of time as will preclude the defendant from making full proof of the actual untruthfulness of plaintiff’s contention, or from protecting itself against loss, because it says that the defendant, in improperly paying the aforesaid check and in improperly charging the said check to this plaintiff, committed the first fault, and that such action on the part of the defendant is the cause of the loss sustained by the plaintiff, upon which the said suit is founded, and that the defendant, having committed the first fault, owed a duty to plaintiff to discover the improper indorsement of the aforesaid check, and, having failed in its duty, it cannot visit the consequences upon this plaintiff, an innocent depositor, who performed its full duty to the defendant and used all due diligence required of it, and because this plaintiff says that, if the said defendant had performed its duty to plaintiff, plaintiff would have been enabled to protect itself against a second payment of the aforesaid check and against the loss sustained thereby, on which said loss this suit is founded. ’ ’

The replication to the third special plea is a mere denial of it.

To appellant’s replication to appellee’s first and second special pleas a demurrer was sustained, and, appellant declining to plead over, final judgment was entered dismissing the suit.

The check in question was drawn November 11, 1902, and paid by appellee November 20, 1902, and the first *631 bank statement showing payment of the check was made January 1, 1903. This suit was brought November 13, 1908; therefore within six years from the time of the payment of the check, but more than three years thereafter.

The questions presented for decision, which will be considered in the order hereinafter set out, are: (1)

When did the statute of limitation begin to run against appellant’s claim? (2) What statute of limitation applies — that of three years, or of six years? (3) Whether .appellant, even though not barred by any statute of limitation, is estopped to maintain this suit?

1. A- depositor in a bank cannot sue the bank for his funds so deposited until payment has , been demanded and refused.' His right of action does not accrue until such demand and refusal; and such demand and refusal to pay is necessary, in order to set the statute of limitation in motion. . The demand by the depositor, however, may be waived by the bank. This may be done by the bank notifying the depositor that his claim will not be paid; and rendering him a statement of his account, showing the balance claimed by the bank to be due him, is equivalent to notice that any claim for a sum in excess of that amount will not be paid, and as to such excess the statute would begin to run from the time of the rendition of such statement. 1 Morse on Banks and Banking (1 Ed.), pp. 590, 591.

The contention that the statute did not begin to run until the discovery by appellant of the forged indorsement of the check is unsound. Section 3109, Code of 1906, has no application to this case. It provides: “If a person liable to any personal action shall fraudulently conceal the cause of action from the knowledge of the person entitled' thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered.” *632 There was no fraud perpetrated or concealed on the part of appellee. It paid the check in good faith, believing the indorsement genuine. Neither the appellant nor the appellee were at fault in failing to discover the forged indorsement after the payment of the check. Appellee’s failure to dicover the forgery at the time it was presented, resulting in its payment, made it liable to the party defrauded to the amount of the check; but after that the duty rested equally on appellant and appellee to discover the forgery, and appellant’s opportunities for making the discovery were as good as appellee’s, because appellant had in its possession the canceled check with the forged indorsement, which had been rendered to it as -a voucher. The running of the statute was, therefore, not delayed to the time of the discovery by appellant of the forged indorsement. Our judgment is appellant’s right of action accrued, and therefore .the statute of limitation was set in motion against it, on January 1, 1903, on which date appellee rendered to appellant a statement of its account, showing this item of four hundred and twenty-five dollars charged against it. This suit was instituted November 13, 1908, within six years of the rendition of said account, and therefore, if the six-year statute applies, this cause is not barred.

2. Section 3099, Code of 1906, provides: “Actions on an open account or stated account not acknowledged in writing; signed by the debtor, and on any unwritten contract, express or implied, shall be commenced within three years next after the cause of the action accrued, and not after.” And section 3097, Code of 1906, provides: “All actions for which no other period of limitation is prescribed shall be commenced within six years next after the cause of such action .accrued, and not after.” It is contended for appellant that the claim, for which suit is brought, does not rest in parol, but is a claim provable by writing, and therefore that the statute of limitation of six years applies, and not that of *633 three years; that the writing by which the claim is provable is appellant’s bank pass book, its certificates of deposit, and the canceled check for fonr hundred and twenty-five dollars wrongfully paid by appellee on the forged indorsement.

Washington v. Soria, 73 Miss. 665 , 19 South. 485 , 55 Am. St. Rep. 555 , was a suit by the vendor against the vendee for the unpaid purchase money of the land conveyed, based alone on the recitals in the deed of the deferred purchase-money payments; the deed being signed alone by the vendor, the vendee having signed no writing agreeing to make the payments. The vendee plead the statute of limitation of. three years and of six years. On this question the court said: “We are of the opinion that the six and not the three-years statute applies. The action is not upon a contract provable by parol, but is one provable by a writing. Whether the action which might have been brought at law could have been ón the promise contained in the deed, treating it as the deed of the defendant because of his acceptance, and the estoppel operating upon him to deny it to contain his written contract, as the decided weight of authority holds may be done, or whether, as is held by the Massachusetts courts, no action could have been maintained on the deed, but the plaintiff must have sued upon the promise implied by law from the acceptance of the deed by the defendant, is, we think, immaterial. In either, event, the promise of the defendant, whether it be express or implied, is to perform a contract, the terms of which are written, and not unwritten. The promise to pay is implied by law, but it is a promise to perform a written and not an unwritten contract. ’ ’

To the same effect is Fowlkes v. Lee, 84 Miss. 509 , 36 South. 1036 , 68 L. R. A. 925, where the court held that a recital of the consideration in a deed which had not been paid was a promise in writing by the grantee to pay the consideration, and therefore *634 a promise provable by writing, and barred by the statute of six years, and not that of three years. In the opinion in that case the court cites, to sustain its position, Ja ssoy v. Horn, 64 Ill. 379 , which was an action of assumpsit, and the evidence of indebtedness relied on by the plaintiff was a deposit bank book, kept in the usual form. The bar of the five year statute, covering unwritten contracts, was pleaded. It was held that the account, evidenced by the bank book, was not barred until the lapse of sixteen years, the period of limitation covering written contracts. The court said: “The entries in the book were made by the bankers, and they charged themselves with the money deposited. They constituted ‘evidence of indebtedness in writing’ within the meaning of the statute.” This holding was approved by the subsequent case of Schalucky v. Field, 124 Ill. 617 , 16 N. E. 904 , 7 Am. St. Rep. 399 .

Cock v. Abernathy, 77 Miss. 872 , reported in 28 South. 18 , where the facts are more fully set out than in the official report, was a suit by a principal against the estate of his attorney in fact for money collected by the latter for his principal, which he had failed to turn over in his lifetime. The only written evidence of the claim was a receipt for the money given by the attorney in fact to the party from whom it was collected. More than three years, but less than six had intervened between the date of this receipt and the suit. The court said: ‘ ‘ The claim was not barred by the statute of limitation of three years, because the liability of Roberson (the attorney in fact) is provable by a writing” — citing Washington v. Soria, supra; the writing referred to being the receipt given by the attorney in fact.

In 25 Cyc. 1041, the principle is stated thus: “In some jurisdictions an action by a depositor for the balance of his account, as evidenced by his bank pass book, is an action upon an evidence of indebtedness in writing, *635 within, the meaning of the statute of limitations, and barred within the period prescribed for such actions.”

It is not necessary, as will be seen from the authorities above referred to, that the writing evidencing the contract be signed by the party sought to be charged. It is a contract in writing in the sense of the statute, if it is provable by writing; and it is not necessary that the writing itself shall contain an express promise to pay. It is sufficient if the promise to pay may be implied from the writing. In the case at bar, in order to raise the promise to pay by appellee, it is only necessary to resort to appellant’s bank pass book and certificates of deposit, in connection with the canceled check in question, all of which are in writing. From the bank book, and certificates there was an implied promise by appellee to return to appellant all funds deposited with it, not legally transferred by the latter by check or otherwise. We think clearly the statute of limitation of six years applies, and not that of three.

3. It is contended for appellee that appellant is es-topped to maintain this suit, because of the fact that appellant' made no objection to the numerous statements rendered it by appellee of its account, after the payment of the check in question, showing its charge against appellant. Estoppel in. pais only operates in favor of one who, induced by the acts or representations of another, so changes his position that injury would .result, if the truth were known. Hart v. Foundry & M. Company, 72 Miss. 809 , 17 South. 769 . There is no ele-' ment of .estoppel in this case. The appellant and appellee were equally ignorant of the forged indorsement of the check during the period these statements were being-rendered. Appellant, neither by act nor representation, induced appellee to pay out the money on the forged indorsement. It is said in 2 Morse on Banks and Banking (4 Ed.) 846: “The depositor is entitled to assume that Ms check, payable to order, will not be paid by the bank *636 until it shall have assured itself that the necessary indorsements appearing thereon are genuine. Welsh’s bookkeeper had charge of his bank books and of his produce. He made fictitious accounts of purchases, and got Welsh to sign checks for payment of the price, payable to the order of the customer from whom the alleged purchases were made. The bookkeeper forged the customer’s indorsement and got the money. Welsh did not discover the fraud for some months, but gave prompt, notice when he did. It was held that neither the deception upon him, nor his receiving the bank books and checks as voucers, precluded him from recovering of the bank. The person whose name is forged is not obliged to examine immediately to detect the forgery. It is sufficient if he notifies the bank when he discovers the forgery.” Reversed and remanded.