Opinion
Argued May 22, 1878
Decided September 17, 1878
R.P. Marvin, for appellant. E.C. Sprague, for respondent.
No question can be raised on this appeal as to the authority of the cashier of the defendant to receive the deposit on the terms expressed in the receipt. It is alleged in the complaint that the money was deposited by Shaw with the defendant, and that the defendant agreed to hold it as security to the plaintiff for the faithful performance by Shaw of his contract with the plaintiff and caused the certificate to be made and signed on its behalf by the cashier and to be delivered to the plaintiff. These allegations are admitted by the demurrer.
It is contended however on the part of the defendant that the transaction was one which the defendant had no corporate power to enter into. That it was an undertaking to hold the money as security for the performance by Shaw of his contract, and to pay damages uncertain in amount to a third party upon the breach of such contract; that such a contract was ultra vires.
If the undertaking on the part of the bank had been to become surety for the performance of the contract by Shaw it would doubtless be subject to this objection. But such was not the character of the undertaking. The bank simply became depositary of a fund, which fund was to stand as security. The bank could in no event become liable for more than the amount of the deposit. The circumstance that the deposit was not made for the sole benefit of the depositor, and that in a certain contingency the fund or some portion of it might become payable to a third person for whose security the deposit was made, did not deprive it of its character of a deposit.
We are not aware of any such limitation upon the power of banks authorized to receive deposits, as would deprive them of the power to receive the deposit of a fund in controversy, to abide the event of a litigation or award, or to become payable upon a contingency to some person other than the depositor. So long as the bank undertakes nothing more than to pay over money deposited with it, to the person who may according to the conditions upon which the deposit was made, become entitled to receive it, we think it does not transcend its powers. Nor can it make any difference that the portion of the sum deposited which may become payable to a third person is at the time of the deposit uncertain and subject to liquidation. Until ascertained, the bank is entitled to hold the fund, and it is also entitled before payment to have the amount liquidated in such manner as to bind all parties. If this liquidation is not made by agreement between the parties entitled to the fund it must necessarily be made by a competent tribunal whose judgment will be binding. In the present case it is further contended that, assuming the undertaking of the bank to have been valid in law, it was only bound to pay the plaintiff's damages after they had been ascertained in an action by him against Shaw. The only purpose of requiring such a preliminary action would be to estop Shaw from denying the breach of his agreement and the amount to which the plaintiff was entitled out of the fund on deposit. It would have been quite proper to have made Shaw a party to this action and demanded judgment against him for the damages claimed, and against the bank that it apply the fund to the payment of such judgment. By taking the objection in the proper manner the bank might have required that Shaw be thus made a party, but the failure to take the objection was a waiver of it. The bank could obtain the same protection by giving Shaw notice of the action and calling upon him to defend it. Being a mere depositary, the bank should be protected against costs not unnecessarily and unreasonably occasioned by it. So far as it is concerned the action is in the nature of a proceeding in rem to reach the fund in the hands of the bank and is not based upon any default or breach of contract on its part. Whatever costs are awarded should be payable out of the fund. The judgment should be modified in that respect and affirmed with costs out of the fund, and the recovery correspondingly reduced. But if the bank desires further to litigate upon the facts it may withdraw its demurrer and put in an answer on payment of the costs of the demurrer and of the appeal to the General Term and to this court, within twenty days.
All concur, except MILLER and EARL, JJ., absent.
Judgment accordingly.