Fells Point Savings Institution v. Weedon

Goldsborojjgh, J., delivered the opinion of this court. The appellee brought this action to recover the amount of a certificate of deposit, issued by the appellant to George F. Allen, alleging, in his declaration, appellant’s indebtedness to appellee’s intestate. T9 .the two counts in plaintiff’s declaration, one for ippney had and received, the other, for money lent by plaintiff’s intestate, the defendant pleaded three pleas: 1st, that it was never indebted as alleged; 2nd, the statute of limitations; 3rd, a special plea; to which the plaintiff demurred, The court passed no judgment on the demurrer. By an agreement, filed in the cause, the question is submitted to this court, whether the appellee, as administrator, is entitled to recpver the amount deposited in the hands of the appellant, without the actual production of the certifica.te at the trial, all mere formal defects in pleading and evidence being waived.

The exceptions to the evidence offered by the appellee being waived by the agreement mentioned, we proceed to consider the ruling of the court in rejecting the four prayers of the appellant, and the instruction given by it to .the jury, which constitute the third exception. The first prayer was, in our opinion, properly rejected. Though on a bill or promissory note, payable on demand, the statute of limitations runs from the date of the instrument, and not from the time of demand, (see Byles on Bills, 273, and the authorities there cited, also 7 H. & J., 14 ,) this rule does not apply to the case before us. Here the certificate of deposit has attached to it a condition, that the amount deposited is payable on the return of the certificate: and the appellant is, in fact, resisting the recovery of the claim upon the ground, that this condition is not complied with. ' The inducement for this deposit was, for the accumulation of interest, and the obligation of the appellant, stated on the face of the certificate, is to pay the principal when demanded, with interest:—upon such a contract the statute cannot be held to run, until the demand h,as been actually made. ³²⁷ The second and third prayers embrace, substantially, the same proposition, and controlled by the agreement above mentioned,- will be considered together.

The certificate of deposit, in question, was so drawn, that the amount mentioned therein was payable to George F. Allen, or order, on demand. Such an obligation has been held negotiable. See 14 Conn., 363 ; 2 Hill, 295 ; and 13 How., 218 . This last case was upon a certificate of deposit, similar, in its import, to the one in question.

The Supreme Court say: “the established doctrine is, that a promise to deliver, or to bb“