(concurring).
I concur in all that has been said by Judge PHILLIPS. His careful analysis of the contract and the legal principles applicable thereto lead to the same conclusion as does a bird’s-eye view of the whole transaction.
The Watkins Bank, an old and solvent institution of standing, wanted to liquidate its affairs. Its concern to protect its depositors in full was such that Mrs. Watkins pledged her personal fortune in order that the depositors might be paid if the bank assets proved insufficient for that purpose. I cannot believe that the parties intended, when this contract was drawn, that any depositor, however small, should have his check dishonored because of the statute of limitations.
Yet the theory of this case is that the stockholders of the Watkins Bank are entitled to the moneys of those depositors who did not draw out their balances before the statute ran as to the Watkins Bank, for no distinction can be drawn between “morgue” deposits and others, the only difference being that the bank keeps a record of a morgue account on a card and of others on a sheet.
The bill of complaint alleges that the depositors’ accounts sued for “have been barred and cannot now be asserted either against said Watkins National Bank or against said Lawrence National Bank.” It is now asserted that the Lawrence Bank is no longer liable on its contract of assumption.
I disagree. The Lawrence Bank unequivocally agreed to pay these deposits, and it is not relieved of that liability because the Watkins Bank published a liq*36uidation notice. And the statute of limitations does not commence to run against a depositor in an open bank until a demand is made and refused. In a suit for a deposit, the Supreme Court of Kansas held “The statute began to run from the demand.” Talcott v. First National Bank, 53 Kan. 480, 484, 36 P. 1066, 1067, 24 L.R.A. 737.
To sustain this judgment, the contract must be construed as meaning one of two things: (1) That as soon as the statute of limitations ran as to the Watkins Bank, the moneys of all depositors whose accounts were carried on a card instead of a sheet should be forfeit to the stockholders of the Watkins Bank; or, (2), that the Lawrence Bank should pay those depositors out of the funds of its own stockholders. For if this judgment stands, and small depositors present checks for their balances tomorrow or next year — :as some will do — then the Lawrence Bank must either dishonor them or pay them. The stockholders of Watkins are thus unjustly enriched by this judgment, either at the expense of the depositor or the stockholders of the Lawrence Bank. The stockholders of the Lawrence Bank are not enriched by a contrary holding, for the liability to these depositors will remain as long as the bank is open, and the bank must maintain reserves against them and go to the expense of keeping a record of them. They can never be distributed to the stockholders.
It is quite impossible for me to believe that the men of character and experience who made this contract contemplated, as does the bill in this case, that at the end of the period of limitations the pittance of the small depositor should be appropriated to the stockholders of the Watkins Bank. On the contrary, they intended that even the small depositor should be paid on demand, no matter when demanded.