Delahunty v. Central National Bank

O’Brien, J.:

It must be regarded as settled that as to moneys deposited in a bank, before the same can be recovered in a suit, it is a condition precedent that a demand should be' made therefor. This flows from the relation between a depositor and the bank, and from the promise which the law implies that the deposit will be returned after demand. The contract, therefore, is that the bank is entitled to retain the deposit until some suitable request is made for its. return. The authorities are far from uniform as to the precise nature of the demand, some using the expression that a demand in some form is necessary, leaving its sufficiency to be determined by the facts appearing in each case. Where, however, the bank by refusal, or by an appropriation of the money, or any other act, shows an indisposition to honor a demand, the cases hold that under such circumstances a demand is unnecessary. So, too, if “ when a. demand is made, a specific objection is made as a reason for not complying with the demand, all other objections, which if made might be readily obviated, are waived. And where the demand is not made of the proper person, or in the proper manner, or is made by the wrong person, objection should be taken at the time.” (5 Am. & Eng. Ency. of Law [1st ed.], 528g).

The question, therefore, turns upon whether the letter of the receiver was a proper demand, and, if not, whether the anstver thereto can be construed as of a nature to justify the failure to make further demand. There can be no doubt that the receiver wanted and requested of the bank a return of the deposit; and while the-requirement that it should be sent to the receiver’s office was one that the bank was not obliged to comply with, it was an objection which should have been taken at the time. The receiver made his request in the form outlined in his letter, and if it was the intent or pui’pose of the bank, before honoring the demand or paying the money, to insist that the receiver should draw his check in the usual way against the account, and, either personally or through some other medium, present it with evidence of his authority, it seems but reasonable that it should then have taken that objection and so notified the receiver. It did not, however, take the objection that the receiver had no right to ask the bank to send the money to him, but,, instead of meeting the request as made, the bank turned the receiver’s letter over to their attorneys. AVe are thus brought to a consideration whether or not such action on the part of the bank,,, coupled with the subsequent letter of the attorneys, was a refusal.

That the bank did not intend to comply is reasonably to be inferred, because the letter received was turned over to its attorneys, who subsequently, on its behalf, answered it, and in such answer, instead of making any point about the manner of the demand or the place where the money was to be paid, or the failure to show authority or warrant to receive it, the attorneys stated that the receiver was “ probably not aware that the bank is itself a creditor of Campbell & Co. to an amount far exceeding these moneys mentioned in your letter to it.” There is certainly nothing in this letter from which the inference can be drawn that the bank intended to comply with the request, or that if the receiver went to the bank it would pay the money. On the contrary, we think the receiver had a right to conclude that the position taken by the bank was that it was entitled to appropriate the deposit in payment of an indebtedness due it from Campbell & Co., and that this attitude rendered useless or obviated the necessity of any further or more formal demand. The receiver, therefore, having waited about six months without hearing further from the bank, and being thus strengthened in the»first impression, produced by the receipt of the attorneys’ letter, commenced this action.

The reply of the attorneys fully justifies the inference that, under claim of right, the bank intended to retain the moneys and apply them to the payment of the indebtedness due to it from the firm. If such was not the intention, the language was so evasive and so well calculated to produce that impression that fault cannot be found with the receiver if he was thus misled. While, therefore, it may not be that the receiver’s letter, taken by itself, was a sufficient demand, yet, when coupled with the bank’s action and the language of the attorneys’ letter, in which the bank’s position was defined, we think it was error for the trial justice to hold that any further or more formal demand was necessary before suit. The right suggested in the letter of the attorneys and alleged in the answer, to appropriate these moneys to the bank’s indebtedness, might or might not have been sustained upon the trial; but that question is not presented upon this appeal, the nonsuit being placed on the ground of the failure of the plaintiff to show a demand in any form, or a sufficient refusal on the part of the bank. We think that the ruling made was incorrect, and that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event..

Yan Brunt, P. J., Barrett and Patterson, JJ., concurred; Rumsey, J., dissented.