I believe this case should be affirmed. I can see no occasion to invoke the principles of the negotiable instruments law, 2 Comp. Laws 1929, § 9248 et seq. (Stat. Ann. § 19.41 et seq.). While title 3 of said law makes provision for promissory notes and checks, section 186 (3 Comp. Laws 1929, § 9433 [Stat. Ann. § 19.226]) under such title refers to an unconditional promise in writing made by one person to another, and in section *Page 39 187 (3 Comp. Laws 1929, § 9434 [Stat. Ann. § 19.227]) a check is defined as a bill of exchange on a bank payable on demand. Had this check been negotiated, the provisions of the negotiable instruments law would be applicable. However, a check presented by a depositor to a bank in order to withdraw money on deposit is not affected by the provisions of the negotiable instruments law. The last two quotations from the negotiable instruments law in the foregoing opinion appearing in article 2 of that law refer to the negotiation of instruments. Section 134 (3 Comp. Laws 1929, § 9381 [Stat. Ann. § 19.174]), also in article 2 of the negotiable instruments law, provides that an acceptance must be in writing. It is neither customary nor necessary for a depositor to ask a bank to accept his check in writing. The bank is under a duty to honor the check on presentation. The relation between the bank and the depositor is that of debtor and creditor. Detroit PistonRing Co. v. Wayne County Home Savings Bank, 252 Mich. 163 (75 A.L.R. 1273).
It became the absolute duty of the bank to pay Mrs. Snyder's check upon presentation were it not for the fact that a writ of garnishment had been issued. The bank, however, took the check and attached it to the account on the books of the bank with the understanding that Mrs. Snyder would be entitled to the moneys represented by the check upon dismissal of the garnishment suit. While the bank stated that the check was left with it "for collection," it "considered the money in said account to belong to said Elizabeth Snyder." This amounted to an assignment of the funds to Mrs. Snyder subject to the garnishment being dismissed. Although the assignment of the funds to her was conditional, the condition was met. The second garnishment did not release the bank's obligation *Page 40 to pay Mrs. Snyder in accordance with its agreement. The second garnishment could not be any more effective than if Mr. Snyder had given a subsequent check on the same account. Mrs. Snyder was entitled to the money.
The judgment should be affirmed, with costs to appellee.
WIEST, J., concurred with BUTZEL, J.