HATCH v. FIRST NAT. BANK.

(Supreme Judicial Court of Maine, 1900. 94 Me. 348, 47 Atl. 908, 80 Am. St. Rep. 401.) ·

On exceptions by defendant. Assumpsit upon a certificate of deposit, issued to one Olive Hodge by the defendant bank, and claimed by the plaintiff as a gift by indorsement and delivery before the death of the donor. The case appears in the opinion. SAVAGE, J.

This action is brought by the plaintiff as indorsee on a certificate of deposit of the following tenor:

"The First National Bank, Dexter, Maine, Jan. 6th, 1897. Olive Hodge has deposited in this bank five hundred and sixty dollars, payable in current funds to the order of herself on return of this certificate properly indorsed. Int. at 3% per annum if on deposit 6 mos. No. 2,236. C. M. Sawyer, Cashier."

The defendant requested the presiding justice to rule that the action could not be maintained by the plaintiff, as indorsee, for the reason that the certificate of deposit in question was not a negotiable instrument. The presiding justice declined so to rule, and the defendant excepted.

The defendant contends that the instrument is nonnegotiable for three reasons: First, because it was written payable in "current funds"; secondly, because of the clause, "Int. at 3% per annum if on deposit 6 mos. ;" and, lastly, because of the condition of payment expressed in the words, "on return of this certificate properly indorsed." That a certificate of deposit, as such, is a negotiable instrument is held by almost unanimous authority (2 Daniel on Negotiable Instruments, § 1702; Miller v. Austen, 13 How. 218, 14 L. Ed. 119), and is not here denied by the learned counsel for the defendant. They only contend against certain features in the certificate before us. This court, following universal authority, has recently defined a negotiable instrument to be one which runs to order or bearer, is payable in money, for a certain, definite sum, on demand, at sight, or in a certain time, or upon the happening of an event which must occur, and payable absolutely and not upon a contingency. Roads v. Webb, 91 Me. 406, 40 Atl. 128, 64 Am. St. Rep. 246. If the certificate in question does not conform to these requirements, it must be held to be nonnegotiable.

The first objection is that it is not made payable in "money”; that "current funds," in which it is made payable, should not be judicially interpreted to mean "money." We do not think this contention should prevail. This subject has been discussed exhaustively by many courts, and the conclusions they have reached on the one side and the other are not in harmony. But we think that the modern and better doctrine is that the term "current funds," when used in commercial 47 The statement is abridged.

transactions as the expression of the medium of payment, should be construed to mean current money, funds which are current by law as money, and that, when thus construed, a certificate of deposit payable in current funds is, in this respect, negotiable. It is well known that certificates of deposit are commonly made payable in "currency" or in "current funds," and we believe that the interpretation we have given is in accord with the universal understanding of parties giving and receiving these instruments; an understanding which we should resort to as an aid to interpretation, unless the words themselves fairly import some other meaning. Some courts hold that evidence may be received to show the meaning of the terms "currency," "current funds." But, in the absence of evidence, these courts come to opposite conclusions. For instance, in Iowa, the court holds that notes payable in currency are prima facie nonnegotiable, but that evidence may be received to prove that the word "currency" describes that which by custom or law is money, and thus the instruments may be shown to be commercial paper. Huse v. Hamblin, 29 Iowa, 501, 4 Am. Rep. 244. On the other hand, in Michigan it was held that, where a certificate of deposit was made payable in currency, "prima facie, at least, that must be held to mean money current by law, or paper equivalent in value circulating in the business community at par." "Such, we think," said the court, "is the general signification, the fair import, and the ordinary legal effect of the term." Phelps v. Town, 14 Mich. 374; Phoenix Ins. Co. v. Allen, 11 Mich. 501, 83 Am. Dec. 756.

Still other authorities hold that the terms "currency" or "current funds," used in commercial paper, ex vi termini mean money. Judge Campbell, in Black v. Ward, 27 Mich. 191, 15 Am. Rep. 162, after a critical examination of a mass of authorities, declared that, with few exceptions, "the general course of authority is in favor of the negotiability of paper payable in currency, or in current funds; and these decisions rest upon the ground that those terms mean money, as the necessity of having negotiable paper payable in money is fully recognized." "The term 'funds,'" say the court in Galena Ins. Co. v. Kupfer, 28 Ill. 332, 81 Am. Dec. 284, "as employed in commercial transactions, usually signifies money. Then the term 'current funds' means current money, par funds, or money circulating without any discount." Respecting an instrument payable in "current funds," the Maryland court said: "The words 'current funds,' as used in the paper before us, mean nothing more or less than current money, and, so construed, the instrument was negotiable." Laird v. State, 61 Md. 311. See, also, Miller v. Race, 1 Burr. 452, 1 Smith, Lead. Cas. 808. The Supreme Court of the United States had occasion, in Bull v. Bank, 123 U. S. 105, 8 Sup. Ct. 62, 31 L. Ed. 97, to pass upon the negotiability of an instrument which had been made payable in "current funds." That court said: "Undoubtedly it is the law that, to be negotiable, a bill, promissory note, or check must be payable in money, or whatever is current as such by the law of the country where the instrument is

drawn or payable. There are numerous cases where a designation of the payment of such instruments in notes of particular banks or associations, or in paper not current as money, has been held to destroy their negotiability. But within a few years, commencing with the first issue in this country of notes declared to have the quality of legal tender, it has been a common practice of drawers of bills of exchange or checks, or makers of promissory notes, to indicate whether the same are to be paid in gold or silver or in such notes; and the term 'current funds' has been used to designate any of these, all being current, and declared by positive enactment to be legal tender. It was intended to cover whatever was receivable and current by law as money, whether in the form of notes or coin. Thus construed, we do not think the negotiability of the paper in question was impaired by the insertion of those words." See Chrysler v. Renois, 43 N. Y. 209; Howe v. Hartness, 11 Ohio St. 449, 78 Am. Dec. 312; Citizens' Nat. Bank v. Brown, 45 Ohio St. 39, 11 N. E. 799, 4 Am. St. Rep. 526; Telford v. Patton, 144 Ill. 611, 33 N. E. 1119. The case of Klauber v. Biggerstaff, 47 Wis. 551, 3 N. W. 357, 32 Am. Rep. 773, holding that a certificate of deposit payable in currency is negotiable, is sometimes cited as distinguishing between "currency" and "current funds," but we think the distinction is more in language than in meaning, for the Wisconsin court, after carefully defining the term "currency," add: "This construction of the term 'currency' might perhaps properly be extended to the term 'current funds.' It must extend to the latter term whenever it is used in the legal sense of money."

Another contention of the defendant is that the certificate of deposit is not negotiable because it is not payable absolutely, but only contingently, "on return of this certificate properly indorsed." We think this is not such a contingency as affects the negotiability of the certificate. The language expresses no more than the law implies as the duty of the holder in the absence of any such stipulation. 2 Daniel on Negotiable Instruments, § 1707; Smilie v. Stevens, 39 Vt. 315.

Further, it is contended that this certificate is uncertain as to amount by reason of the interest clause, and therefore is not negotiable. No time of payment is mentioned in the certificate. It is accordingly payable on demand. If payment be demanded at any time within six months, the amount payable is certain; it is the face of the certificate. If payment be not demanded until after six months, the amount payable is equally certain; it is the face of the certificate and interest to the time of payment. In this respect, the certificate is like a note payable at a time certain with interest at a specified rate from the date of the note, or from maturity if it is not paid at maturity. Such notes. are held negotiable. As in the case of a note on demand or on time. the time when it may be actually paid is uncertain, so it is uncertain when this certificate may be presented, and payment demanded. But whenever that may be, the sum to become absolutely payable upon it at any given time is ascertainable upon its face, and that is sufficient.

Smith v. Crane, 33 Minn. 144, 22 N. W. 633, 53 Am. Rep. 20; Towne v. Rice, 122 Mass. 67; Hope v. Barker, 112 Mo. 338, 20 S. W. 567, 34 Am. St. Rep. 387; Crump v. Berdan, 97 Mich. 293, 56 N. W. 559, 37 Am. St. Rep. 345; 1 Daniel on Negotiable Instruments, § 53. This disposes of the exceptions relating to the negotiability of the certificate. At the trial the plaintiff claimed that Olive Hodge, when she indorsed the certificate, gave it to her as her property, and this the defendant denied. The defendant requested the presiding justice to instruct the jury that, "if it was a mere gift made by Olive Hodge to the plaintiff in manner aforesaid, it would not authorize her (the plaintiff) to demand payment of the balance remaining unpaid represented by the certificate, but still unpaid after her (Olive Hodge's) death," which request was refused, and exception was taken.

We do not think, upon the facts stated, that this exception raises any question of law. The bill of exceptions does not state what was the "manner aforesaid" in which the gift was made. It merely states that it was "a question in dispute between the parties" whether there was a gift or not.

If there was a gift-which was a question of fact, of course-the property in the certificate remained in the plaintiff both before and after the death of Olive Hodge.

Exceptions overruled.

BROWN et al. v. PERERA.

(Supreme Court of New York, Appellate Division, First Department, 1918. 176 N. Y. Supp. 215.)

See ante, p. 4, for a report of the case.

(Court of King's Bench, 1720. 1 Str. 399.)

In case upon a promissory note, the declaration ran, that the defendant made a note, et manu sua propria scripsit. Exception was taken, that since the statute he should have said that the defendant signed the note, but the court held it well enough, because laid to be

wrote with his own hand, and there needs no subscription in that case, for it is sufficient his name is in any part of it. I. J. S. promise to pay is as good as I promise to pay, subscribed J. S.

DRUMMOND v. DRUMMOND.

(Court of Session, Scotland, 1785. Mor. Dic. 1445.)

James Drummond subscribed as the acceptor of a bill drawn in these terms: "Against Martinmas next, pay to Anne Drummond, or order, the sum of 1035 merks, for value." But there was no subscription of the drawer.

It was objected by the other creditors of James Drummond that a bill not subscribed by the drawer, though accepted, could not be sustained as a ground of debt.

But as the creditor's name was inserted in the body of the bill in question, and thus there occurred all the essential requisites of a promissory note,

THE COURT repelled the objection. 48

STOESSIGER v. SOUTH EASTERN RY. CO.

(Court of Queen's Bench, 1854. 3 El. & Bl. 549.)

Case against the defendant as common carrier for the loss of £9. 10s. On the trial, before Crompton, J., at the Westminster sittings in last Michaelmas term the following facts appeared:

The plaintiff was a commercial traveller in the employment of Gideon Goold named in the declaration who resided at Birmingham. A person named Cruttenden residing at Chatham being indebted to Goold to the amount of £11. 10s. gave to the plaintiff at Chatham, to be by him transmitted to Goold, an instrument of which the following is a copy:

"£11: 10: 0.

Birmingham, Sept. 1852.

"Three months after date pay to my order the sum of eleven pounds 10s., value received.

at

"Mr. Cruttenden, Jeweller, &c., Chatham."

Across the face of this instrument was written: "Accepted payable Bank. G. Cruttenden."

48 Contra: Tevis v. Young, 1 Metc. (Ky.) 197, 71 Am. Dec. 474 (1858). But see the dissenting opinion of Simpson, J., in which he says: "The only parties to a bill of exchange between whom a direct undertaking exists are the acceptor and the payee. The former, by his acceptance, agrees to pay to the latter the amount of the bill according to its tenor and effect. Here such an undertaking existed; the acceptor agreed to pay the sum named in the instrument to the payee, and the latter, by his indorsement, transferred the benefit of this promise to the holder. What more was necessary to create a liability upon the parties? There is a direct promise to pay the money, and a transfer of that promise."