Munnerlyn v. Augusta Savings Bank , 88 Ga. 333 ( 1891 )

Lumpkin, Justice.

1. When money is deposited in a bank, it is immaterial, so far as the bank is concerned, in what capacity the depositor holds or owns it. The obligation of the bank is simply to keep it safely and return it to the proper person. Therefore, when a trustee deposits money in a bank to his credit as agent, the bank would be discharged by paying it back to the individual who made the deposit, and in the absence of knowledge or notice to the contrary, would have the right to assume that he would appropriate the money to its proper uses and trusts. If this individual should go in person to the bank and demand the money, it cannot be doubted that the latter could, and ought to hand it to him. This being true, he could recover the money from the bank by suit, and it will make no difference that in the action brought he designates himself as trustee, nor is it of any consequence that he joins with himself therein the alleged beneficiaries of the trust. Although the latter are not necessary parties, no injury can ensue to defendant by making them actual parties to the case.

2-3. It appearing from what has already been said that the person who actually puts money m bank is entitled to have it back upon demand, and that it is immaterial how he describes himself, there can be no doubt that a check drawn by such person as agent and presented by the payee is a sufficient demand for the amount of money called for by the cheek, especially when the money was credited to the depositor as agent.

If payment of such check be refused, the depositor may bring suit, and, as already shown, the suit may be maintained by him described as trustee.

It appears from the declaration in this case that the deposit made was a general one, and that the bank did not issue to the depositor any certificate of deposit promising a repayment of the money, or fixing any time or terms for repayment. It simply gave to the depositor written statements to the effect that his account as agent had been credited with so much money. Under these circumstances, the bank did not become liable for a repayment of the money until after demand for it by check or otherwise, and hence the statute of limitations would not commence to run in favor of the bank until after such demand and refusal to pay. We do not mean to hold that such demand could be indefinitely delayed, for under the rule laid down in the books, this might be done for such a length of time that the right to the money would become stale.

The propositions above announced are sustained, we think, by the following authorities: 2 Am. & Eng. Encycl. of Law, 101; 1 Morse on Banks & Banking, §322; Bolles on Banks & Depositors, §360, and cases cited in each.

The court below dismissed the declaration on the ground that, on its face, it appeared that plaintiffs’ right of action was barred by the statute of limitations. This ruling, for the reasons above stated, was erroneous.

4. That a trustee deposits money in bank to his credit as agent is not a conversion of the fund, even though the bank knew of the existence, of the trust. It has the right, as already stated, to presume that the trustee will apply the money to its proper purposes under the trust. Of course, if the hank actually knew the trustee was misapplying the trust money and aided him in so doing — as, for instance, by endeavoring to appropriate such money to the payment of a debt incurred for his private benefit and due by him individually to the bank, — an entirely different question would be presented. National Bank v. Insurance Co., 104 U. S. 54; Union Stock Yards Bank v. Gillespie, 137 U. S. 411.

5. Error was assigned in the bill of exceptions upon the refusal of the court to strike defendant’s pleas. The pleas are numerous, but they really set up only three defences: first, the general issue; second, payment; and third, the statute of limitations. It was not insisted that the plea of the general issue should be stricken. The other pleas allege that all the money deposited by Munnerlyn had been paid out upon his checks and by his order and direction, and a list of the checks is given. In connection with the allegations that the money had ' been thus paid out, it is further asserted in the pleas that all these payments had been made more than four years before the filing of the suit, and therefore the action was barred by the statute of limitations. The pleas thus intermingled these two defences, and the motion to -strike was made against them as a whole. To have granted this motion would have resulted in striking the plea of payment, which was set forth with sufficient distinctness and constituted a complete answer to the action. We have already shown that the plea of the statute of limitations, tested in the light of the plaintiffs’ allegations, was not good; but the plea of payment by the bank on Munnerlyn’s checks was a valid defence. If the payment alleged therein, to the person who actually made the deposit or on his checks, is established by proof, the bank should be discharged. City Bank of Macon v. Kent, 57 Ga. 283. This plea of payment is not vitiated because it is thus associated with the invalid plea of the statute of limitations. A bad part in pleading does not make the whole bad, but a good part makes the whole good enough to withstand a general demurrer. The court, therefore, did not err in overruling the motion to strike the defendant’s pleas. See May v. Jones, this term, and cases cited (ante, 308). Every one of the pleas objected to contains an averment of payment to the depositor or his order, which suffices to save each one from destruction by a general motion to strike. But even if some only of the pleas are sound defences, the other's, not being singled out or selected by the movant as specific objects of attack, would stand because found in good company.

The judgment is reversed because the court erred in dismissing the petition on the ground that the cause of action alleged therein was barred by the statute of limitations. Judgment reversed.