Morse v. National Central Bank

Pattison, J., delivered the opinion of the Court. Maria Dittmar, on the 24th day of January, 1873, de- - posited with the German Savings Bank of Baltimore City the sum of two thousand eight hundred and twenty-five dollars and fifty cents, and received from the bank a deposit book therefor No. 5755. On the 5th day of May of the' same year she made a further deposit of one hundred dollars, and on July 30th she withdrew from the bank the sum of twenty-seven dollars and seventy-five cents. The two deposits, as well as the withdrawal, were entered on the book-given to her.

On May oth, 1873, the same day upon which she made the deposit of the one hundred dollars above mentioned, Mrs. Dittmar deposited with said bank four hundred dollars, and received from it a deposit book No. 6117, in which the deposit of four hundred dollars was entered. About a week prior to the death of Mrs. Dittmar, which occurred on November 26, 1922, at the age of ninety years, while she was ill and at the time unconscious, her grandson, Wm. A. Codd, went to her home and took from her locked bureau drawer, without her knowledge and direction, cer ¹⁴⁴ tain articles belonging to' her, consisting of jewelry, fire insurance papers, deed for cemetery lot, savings account books and check book on the Drovers and Mechanics Bank, the two deposit books of the German Savings Bank above mentioned, and a savings account book of Herman Dittmar, the husband of Maria Dittmar, in the German Savings Bank, though Herman Dittmar had died forty-eight years prior to such time. Codd, it seems, had to some extent looked after the business affairs of Mrs. Dittmar after she became unable to do so, and upon her direction had drawn money both from the Savings Bank of Baltimore and the Eutaw Savings Bank for her support and maintenance, as well as to pay taxes and expenses upon her property.

He knew that she kept her valuables in the drawer mentioned, but he did not know of the existence of the deposit books of the German Savings Bank, as he ha'd never seen them nor had he ever heard his grandmother mention them. These things were all removed from the drawer, as he says, to keep them from being scattered, and were, after the death of his grandmother, given to his aunt, Mrs. Mary E. Morse, the appellant, who lived with her mother, Mrs. Dittmar, and who became administratrix of her mother. The record discloses that these deposit books o± tne German Savings Bank were first given to one George Loclen; the son-in-law of Mrs. Morse, and her first legal advisor in the settlement of her mother’s estate. The books were in his possession at the time of his death, which occurred in September, 1923, when they were returned to Mrs. Morse and she, in the same month, presented them to the National Central Bank, the successor of the German Savings Bank, and demanded payment of the amount claimed by her upon them.

Payment was refused upon the ground that there was nothing owing thereon, and suit was thereafter instituted to recover the amount so claimed by the appellant. The case was heard by Judge Frank, sitting without a jury, in the Superior Court of Baltimore City, ¹⁴⁵ and a verdict was rendered by him in favor of the defendant, and upon such verdict a judgment was entered for defendant’s costs. It is from that judgment the appeal in this case was taken. In the trial of the case eight exceptions were taken to the rulings of the court; one upon the prayers and seven to the admission of evidence.

The plaintiff offered one prayer, which was rejected, while fbe defendant asked for six instructions. Of these, the fourth was granted and the others refused. The court was asked by the plaintiff’s prayer to rule as a matter of law that should it “find that the deposits entered in the two pass books offered in evidence were credited to the account of Maria Dittmar, then the burden of proof is upon the defendant to establish by the preponderance of the evidence that the saic! funds have been paid out by the defendant upon the authority of the deceased Maria Dittmar, and if the court sitting as a jury shall find that the defendant has not met this burden of proof, either as to all or to part of the said deposits, then, if the court sitting as a jury further finds that the accounts in question were savings accounts, the verdict of the court sitting as a jury shall be for the plaintiff for the amount of said deposits (less sums which halve been shown to have been paid out as aforesaid) plus interest on the deposits at the rate of five per cent, per annum, compounded on the first day of January and the first day of July in each year, to the date of trial.” By the defendant’s fourth prayer, which, as we have said, was granted, the court instructed itself, sitting as a jury, that should it find “that for a period of more than forty-five years prior to the date on which demand was made by the plaintiff’s intestate for the payment to her of the amounts shown by the two savings- bank books offered in evidence, no demand or claim of any kind had been made on the defendant or its predecessors by the plaintiff’s intestate or on her behalf, for said sums or any part thereof or any interest thereon, that then it is incumbent on the plaintiff to prove by a ¹⁴⁶ preponderance of evidence, and not only by the production of the books themselves, that the amounts shown on said books had not been paid by the defendant.” In passing; upon these prayers the court was called on to decide upon the facts of this case, whether there existed a presumption arising from lapse of time, that the amount once owing to appellant’s intestate, by reason of said deposits, had been paid. It is said in 21 B. O. L. 128: “In all civilized countries where the. law is administered as a science, having a reference to the peace, quiet and progress of society, as well as to the protection of individual lights, it has been thougiht wise that there should be some limit to litigation, some boundary beyond which contests or matters open to contest should be regarded as settled.

Early in the judicial history of England the presumption of payment was raised after a great lapse of time between the creation of an obligation and an attempt to enforce it in the courts. This presumption became a part of the law of the United States and is applied in ail jurisdictions. * * * “The presumption rests, not only on want of diligence in asserting rights, but on the higher ground that it is necessary to suppress frauds, to avoid long dormant claims, which, it has been said, have often more cruelty than justice in them; that it relieves courts from the necessity of adjudicating rights so obscured by the lapse of time and the accidents of life that the attainment of truth and justice is next to impossible. In a word, * * * the most solemn of human obligations lose their binding efficacy and are presumed to be discharged after many years. Forbearance to enforce a pecuniary claim is not direct evidence that the money has been paid, but on the fact of forbearance the law builds a presumption that a demand has been satisfied, resting it on the rational ground that a person naturally desires to possess and enjoy his own, and that an unexplained neglect to enforce an alleged right for a long period casts suspicion ¹⁴⁷ on the existence of the right itself, because in the ordinary course of human affairs it is not usual for men to allow real and well founded claims to lie dormant a great length of time. * * * “The presumption of payment is conclusive in the sense that where it appears that the requisite time has elapsed and no countervailing evidence is given, neither the court nor the jury' is at liberty7 to find that the debt was not paid; but it is not conclusive in the sense that the plaintiff may not introduce evidence to disprove the fact which by7 force of law the lapse of time establishes.” Unless made shorter by statute, the lapse of time requi red to raise the presumption is twenty .years, and no such presumption arises merely7 from a lapse of less time. 30 Cyc. 1274.

The distinction between such a’ presumption and the statute of limitations is well stated in Reed v. Reed, 46 Pa. 239 , where it is said “the latter is a. prohibition of the action; the former, prima facie, obliterates the debt. The bar is removed by7 nothing loss than a new promise to pay or an acknowledgment consistent with such a promise. The presumption is rebutted, or, to speak more accurately, does not arise where there is affirmative proof beyond that furnished by7 the specialty7 (or the instrument upon which suit is brought) itself, that the debt has not been paid, or where there are circumstances that sufficiently account for the delay of the creditor.” See copious note to Sheafer v. Woodside, 1 A. L. R. 775, upon presumption of payment from lapse of time. This presumption of payment arising from lapse of time is universally recognized and its existence is not denied by the appellant, although, upon the facts disclosed by the record, its applicability to this case is disputed by her.

The German Savings Bank was incorporated in 1868, and at that time it entered into and continued business until the incorporation of the German Bank of Baltimore, in 1874, when it was succeeded by7 the last named bank, which in ¹⁴⁸ 1918 was succeeded by the Rational 'Central Bank of Baltimore. The rules and regulations of the German Savings Bank applicablé to the deposits made by Mrs. Dittmar and entered in deposit books Ro. 5755 and Ro. 6117, written both in English and in German, are found to be the same. Among them are found the following rules and regulations: “Ro. 5. Accumulated interest will be added to depositors’ accounts on or after the first day of January and July of each year and will then bear interest in like manner as regular deposits. “Ro. 6.

Every three years an extra dividend will be declared for deposits of 3, 2 and 1 years uninterrupted standing, if the condition of the bank justify such declaration. “Ro. 7. Depositors are requested to hand in their deposit-books every six months for entering interest and balancing accounts. “Ro. 9. Business accounts, viz. deposits subject to being checked out will not draw interest. Deposits of that kind must be accompanied by deposit checks and will be paid out upon the depositor’s cheek without the presentation of the bank book being required, the books however must be presented at the bank at least once every three months for settlement.” It will be observed by rule or regulation (7) that depositors were requested to hand in their deposit books every six months that the interest mentioned in rule (5) might be entered; and by rule (9) business or checking accounts drew no interest and deposits therein would be paid out upon the depositor’s check without the presentation of the bank book, though the'mile provided that the books should be presented at the bank at least once every three months for settlement.

Mrs. Dittmar, on May 5th, 1873, the day she opened the second account, known a:s Ro. 6117, deposited five hundred dollars in the German Savings Bank. Of this amount she deposited four hundred dollars in the new account and one hundred dollars in the first account or account Ro. 5755. ¹⁴⁹ Why she did this is not disclosed by the record, unless one was to be a checking account and the other a: savings account. The second account, or account No. 6117, shows upon its-face the following entry: “July 30th, by check 27.72.”' Through this entry a line is drawn, indicating that such entry was made in error; and on the face of the first account, or account No. 5755, is shown the same entry, which was-allowed to remain as entered. The erasure of this entry in the second account, and its insertion in the first, might indicate that the first was a checking account while the second account was not so intended, and if this be so, then it explains-why the amount deposited on May 5th was divided and a part of it deposited in the new account then opened.

In the second account, or deposit book No. 6117, tliere appears the notation “Int. 8.35.” This sum is the amount of interest on the deposit of four hundred dollars from June 1st, 1873, the first month after the deposit of the four hundred dollars, to the first of November, 1873; and upon the other side of the account are found the figures “408.35,” that amomit being at that time, November 1st, 1873, with the interest added, the sum owing on the account. But on the first account or" deposit book, No. 5755, we find only the entries of the two deposits on one side and the entry “July 30, by check, 27.75” on the other. The fact that the interest is computed to a given date in book No. 6117 and not in book No. 5755, further indicates that the account in hook No. 6117 was a savings account upon which interest was payable, and that the account in book No. 5755 was- a checking account, upon which no interest was to be paid under rule or regulation (9), which, as we have seen, provides that no interest tvas to be paid on checking accounts. Treating account No. 6117 as a, savings account, there is nothing upon it, after the notation of the interest mentioned, showing that the depositor ever, at any time thereafter, presented her hook to- the bank that the semi-annual interest accruing from time to time might be entered thereon in compliance with the request made of her by rule (7) of the rules ¹⁵⁰ and regulations of the bank; nor is there any entry in book No. 5755, if treated as a savings account, showing any compliance with rule (7); and if treated as a checking account, there are no entries therein showing a compliance with rule (9) of the regulations, in which it is said, the books “must be presented at the bank at least once every three months for .settlement.” It would seem that these books remained in the ^possession of Mrs. Dittmar from July, 1873, to the time of her death in November, 1922, a period of more than forty-nine years, during all of which time they were never presented to the bank that the entries,