« PreviousContinue »
Alaska, to be repaid in gold dust at in the state of Washington. Among $16 per ounce, or United States or the branches so maintained and opCanadian currency, at the defend- erated in the territory of Alaska ant's option, upon the return of the was one at Nome, which was opercertificate properly indorsed. Is- ated there from the winter of 1899 sues were formed by an affidavit of to some time in 1905, but not after defense, and submitted to the court May 1, 1905, prior to which time the
, for trial. The court heard the evi- defendant discontinued its station dence and rendered judgment for or place of business at Nome, and the defendant. On appeal to the ap- has not since that date had or mainpellate court for the first district, tained a place of business at Nome. the judgment was affirmed, and a The defendant never, at any time, certificate of importance and an ap- delivered to the plaintiff the quantipeal to this court were allowed. ty of gold dust specified in the cer
At the close of the evidence, the tificate, or paid to the plaintiff the court made findings of fact tendered amount thereof in United States or by the plaintiff, in substance, as Canadian currency, or returned to follows: The plaintiff, W. H. Emer- the plaintiff the $10,000 deposited. son, on March 31, 1900, deposited the plaintiff proved all the averwith the defendant, at Nome, Alas- ments of his statement of claim. ka, $10,000, and the defendant, by On the part of the defendant, the its duly authorized agent, executed court made the following findings and delivered to plaintiff a certifi- of fact: The defendant is a corpocate of deposit as follows:
ration organized and existing under “$10,000. Certificate of Deposit. the laws of this state, and chartered
No. H761. on or about April 14, 1892, and ever “North American Transportation & since has had and maintained an Trading Co.
office and transacted business in the "Nome, Alaska, 3/31/1900. state of Illinois, and was capable of “This certifies that W. H. Emer- being sued and served with process son has deposited ten thousand dol- in this state, which was the same lars, payable to the order of W. H. finding of fact before recited. From Emerson upon return of this cer- prior to 1900 continuously up to the tificate properly indorsed. Not sub- time of the trial, defendant was enject to check, and redeemable in gaged in and conducted business in gold dust at the rate of 16. per oz., the territory of Alaska, by and or in U. S. or Canadian currency, at through its certain agents and repthe company's option.
resentatives in said territory, and "North American Transportation has been capable of being sued and
& Trading Co., served with process in said terri
“by R. J. Embleton.” tory. The plaintiff never presented On December 13, 1916, the plain
the instrument sued upon, or made tiffindorsed the certificate and any demand for payment of the caused the same to be presented to
same, until on or about December the defendant at its principal office
13, 1916. From and after March in Chicago, and payment was re
31, the certificate could have been fused. The defendant is a corpora
presented to the defendant, and tion organized on April 14, 1892,
payment demanded, either in the under the laws of Illinois, and has territory of Alaska or the city of at all times since that date main- Chicago. The Statute of Limitatained its principal office in Chi
tions of the territory of Alaska, apcago. The plaintiff at all times plicable to instruments of the kind since the year 1904 has resided in
and character sued upon, required California. The defendant, from action to be commenced within six time to time, maintained and operat- years next after the cause of action ed branches of its business at vari- had accrued. ous points in Alaska, and at Seattle, The plaintiff tendered to the (303 Ill. 282, 135 N. E. 497.) court, and the court refused to hold, mand, and in consequence thereof the following propositions of law: was barred by the Statute of LimiThat a cause of action does not ac- tations of Alaska; that the plaintiff crue to the holder of a certificate of did not commence his suit within deposit in the form of the one sued ten years after the expiration of a upon, until an actual demand for reasonable time for making a depayment and refusal; that the plain- mand, and was barred by the Stattiff's cause of action accrued on ute of Limitations of this state; and December 13, 1916, and not before; that if it should be held, as a matter that the plaintiff's cause of action of law, that plaintiff was required was not barred by the Statute of to make a demand within a reasonLimitations of this state, or by the able time, such reasonable time was Statute of Limitations of the terri- not in excess of the period of limitatory of Alaska, and that the certifi- tions of the territory of Alaskacate was a contract under the terms that is to say, not in excess of a periof which the defendant, upon the re- od of six years after March 31, turn thereof properly indorsed, was 1900. bound to deliver to the plaintiff, ei- The trial court held every controther 625 ounces of gold dust, or the verted question of fact for the plainsum of $10,000 in United States or tiff, but held that the action was Canadian currency.
barred in a variety of ways, under The defendant tendered to the statutes of limitation, applying the court, and the court held, the follow- statute of Alaska to bar the action ing propositions to be the law: there to bring it within $ 20 of our That the action was barred under $$ statute, and also to fix the time when 16 and 20 of the Statute of Limita- our statute would begin to run. tions of this state (Hurd's Rev. Statutes of limitation affect the Stat. 1921, chap. 83); that the cer- remedy, which is to be governed by tificate became due and payable at the law of the state where the suit its date on March 31, 1900, and the is brought, but the character and cause of action accrued thereon at construction of a contract are deterthat date, and the Statute of Limi- mined by the law of the jurisdiction tations of this state began to run
in which the cause of action arose. against the instrument from and On the question of the construction after said date; that the cause of
of the contract, the court held that action accrued on March 31, 1900,
the certificate became due and payand the Statute of Limitations of
able at its date, and therefore the Alaska began to run on that date,
cause of action accrued thereon on and the plaintiff was required to
March 31, 1900, when the deposit commence his action in Alaska with- was made. Counsel for both parties in six years thereafter; that the have argued that question as being plaintiff was, at the time of the com
controlled by the law as decided by mencement of this suit, barred in
this court, and no question is made the courts of Alaska, and barred by concerning any difference in the law $ 20 of the Statute of Limitations of
of Alaska. this state; that the plaintiff failed The holding that the cause of ac-. to make demand for the payment of
tion on the certificate accrued when the instrument sued upon within a
it was made was not in accordance reasonable time after the execution
with the rule of law generally apand delivery of the same, and was therefore barred; that such reason,
plied, nor as declared in this state,
and the refusal to hold the proposiable time for making such demand was within six years next after
tion that a cause of action did not
accrue to the holder March 31, 1900; that the plaintiff of the certificate un- hetionata did not commence his suit within til an actual de certificate of six years after the expiration of a
mand for payment reasonable time for making a de
and refusal was error.
fendant was incorporated to en- directly involved in any case in this
spect from an individual; but a bank The certificate acknowledged the is not obliged to seek its depositors receipt of $10,000, and contained a
and pay them. In what was there continuing promise to return the said, as well as in the further condeposit in gold dust or United States
sideration of the questions involved or Canadian currency, and the gen- in this case, account is necessarily eral rule is that, in such a case, a demand is necessary to fix liability, business and later usages and cus
taken of the nature of the banking and a cause of action does not accrue until a demand. A certificate
toms relating thereto. If it was the of deposit, payable to the depositor
usage of banks in 1861, when the deupon return of the certificate, is not posit in Hunt v. Divine, supra, was due until the certificate is tendered made, for the banker to find his cerand demand for payment is made.
tificate and take it up, and the time 7 C. J. 650; 3 R. C. L. 582; 25 Cyc.
to return the certificate was upon 1096; 2 Dan. Neg. Inst. 6th ed. p. his demand, that was not the us1907; Elliott v. Capital City Bank, age and custom thirty years after128 Iowa, 275, 1 L.R.A.(N.S.) 1130, ward when this certificate was 111 Am. St. Rep. 198, 103 N. W. made, and it has not been the usage 777. The question has never been and custom since that time, and
(303 ni. 282, 135 N. E. 497.) what was said in McCormick v. would be redeemed at some other Hopkins, supra, was correct.
place in Alaska. Based on the finding that the The remaining proposition of law cause of action accrued on March held by the court was that, if the 31, 1900, when the deposit was plaintiff was required to make a demade, the court held that the Stat- mand for payment of the certificate ute of Limitations of this state within a reasonable time, he failed barred the action ten years after to make such demand, and his action that date, and, on the same ground, was therefore barred; that such that the cause of action was barred reasonable time for making the dein Alaska six years after the date mand was within six years after of the certificate. These findings March 31, 1900, and not in excess of fall with the finding that the cer- the period of limitation of the territificate was due at its date.
tory of Alaska; that the plaintiff The finding that the action was did not commence his suit within barred under $ 20 of the Statute of six years after the expiration of Limitations of this state, which pro
such reasonable time, and in consevides that when a cause of action quence thereof was barred by the has arisen in a state or territory Statute of Limitations of Alaska, out of this state, or in a foreign and did not commence his suit withcountry, and by the laws thereof an in ten years after the expiration of action thereon cannot be main
such reasonable time, and in consetained, an action will not be main- quence was barred by the Statute of tained in this state, was based on
Limitations of this state. The court the findings that the certificate was
applied the statute of Alaska to fix due at its date and was barred in
a reasonable time for making a desix years in Alaska. This was in- mand, which necessarily implied correct, both because the defendant
that the demand was to be made in was all the time a resident of this
Alaska, and then applied both the
Statute of Limitations of Alaska state, with its principal office here,
and the statute of this state to bar and the cause of action never did
the action. The appellate court did arise in Alaska, since no demand was made there. It was also in di
not approve of the finding that the
certificate was due at its date withrect conflict with the finding of fact
out a demand, but affirmed the that the business and branch at judgment upon the grounds that the Nome were not maintained or op- plaintiff was required by law to erated after May 1, 1905, before the make a demand within a reasonable six years expired, so that the plain- time; that the certificate, having tiff could not have made a demand been made in Alaska, was governed there for his money. The deposit by the law of that territory; that the was received at Nome, and the cer- reasonable time to make a demand tificate was to be returned there. for payment was within the period The defendant having ceased to of the Statute of Limitations of maintain its business and branch at Alaska, which ended on March 31, Nome, the plaintiff was not bound 1906; that the law would presumé Bank-certificate
to present it else- that a demand had been made withof deposit
where, unless at the in that period, and thereafter-the place of residence suit not being commenced within
and principal office of the defendant in this state. On
six years under the Alaska statute,
or ten years under the statute of that question it is of no importance this state—the action was barred. that the plaintiff might have found
It has been declared in various an agent at some place in Alaska, and have sued the defendant in that
cases that it is the duty of the holder
of a certificate of deposit to make a territory—at least, in the absence demand within a reasonable time, of any notice that the certificate and, unless a reasonable exeuse ap
where demand to be made.
pears, such time will not be extend- should be made, which was the ed by the court beyond the statutory time limited for bringing action. period of limitation; that at the ex- The court said that such a certificate piration of that time the law will differs from and serves a different presume that a demand was made
certificate for monwithin that time, and the Statute of ey borrowed, and which carries inLimitations will begin to run from terest, as in McGough v. Jamison, the expiration of such statutory pe- 107 Pa. 336, and Finkbone's Appeal, riod. The case of Pierce v. State 86 Pa. 368. The holding was that Nat. Bank, 215 Mass. 18, 46 L.R.A. what would be a reasonable time (N.S.) 693, 101 N. E. 1060, is much was a question of law for the court, relied upon, and is frequently cited, under rules governing paper of that and illustrates the necessity of con- kind. That case and cases of that sidering the nature and purpose of kind are not controlling, if note is different certificates of deposit, and taken of the different nature of dethe expansion of the banking busi- posits in banks. Under present usness to the safe-keeping of funds. ages, certificates of deposit are not
In that case a certificate of deposit generally employed for the purpose
a was made in 1859, and no demand stated, but furnish evidence of dewas made until November 17, 1895, posits of money, to be kept either thirty-six years after its date, and for a stated time or indefinitely. suit was not begun until March 7, Practically every village has its 1906, forty-seven years after the de- bank which invites deposits for posit. It was held that while a cer- safe-keeping, and such banks gentificate of deposit, for the most part, erally have savings departments.
, has the incidents of a promissory Banks, in receiving deposits, may be note, it differs from a note payable mere custodians for safe-keeping, on demand in that it is not overdue and come within the rule of Campuntil after demand for payment; bell v. Whoriskey, 170 Mass. 63, 48 that, such a certificate being payable N. E. 1070. In that case Mary only after demand, limitations do Campbell began depositing her not begin to run until demand, and money with her second cousin in where it is not issued for money 1869, and in 1877 he gave her a borrowed and bearing interest the memorandum of the amount redemand must be made within a rea- ceived up to that time. The court sonable time. The court said that held that a cause of action did not the purpose and use of certificates accrue until she demanded her monof deposit, using that term in the ey; that the element of trust entered proper sense, were to transmit into the transaction, and she was funds and make payments like cer
not bound to demand the money tified checks or cashier's checks; within the statutory period of six that the person desiring to transmit years, but thirteen years after the funds deposited in the bank the sum date of the memorandum was a reato be paid or transmitted, and pro- sonable time within which to make cured a certificate of deposit, or the demand. The court said that, in drew his check and procured it to be receiving and keeping the money for certified by the bank, or procured a the plaintiff, the depositary stood in cashier's check, and by indorsing the the place of a savings bank. If Emcertificate, the certified check, or the erson's deposit was of such a nature cashier's check, transmitted the as to require a demand within a reamoney. On that ground it was held sonable time, the finding of fact was that the function performed by a that business in Nome had been discertificate of deposit contemplated continued, and if a demand was to a presentation of it for payment be made at the principal office of the within a short time, and the general defendant, and the reasonable time rule, therefore, was applicable as to governed by the statute of this the time within which a demand state, the action was not barred, so