Anderson v. Bank of Santa Cruz County

HALL, J.

This is an appeal from a judgment against plaintiff taken within sixty days from the entry of judgment.

[428]

The only errors relied on for a reversal of the judgment are that the court erred in overruling plaintiff’s demurrer to defendant’s answer, and in granting defendant’s motion for a nonsuit.

The action was brought to recover of defendant the sum of $1,000. It is alleged in the complaint “That on said last-named date (August 8, 1903) said plaintiff delivered to and left with said defendant, the Bank of Santa Cruz, said sum of $1,000, in gold coin of the United States of America. That the said last-named defendant then and there received said last-named sum of money and agreed to repay the same to said plaintiff on his order or demand.” Then followed an allegation of a demand and refusal to pay.

Defendant’s answer denies that it ever received $1,000, or any other sum of money from plaintiff except that it sold to plaintiff a bill of exchange for $1,000, payable to the order of a third party, one

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R. Helbron, and received therefor $1,001. The answer fr ither denied that defendant ever agreed to pay the sum of $1,000, or any other sum, to plaintiff or to his order.

This we think was a sufficient denial of the allegations of the complaint in the face of a general demurrer. (The demurrer to the answer is a general one.) The complaint, it will be observed, does not count upon a dishonored bill of exchange, but seems to attempt to plead a simple deposit with a bank, and a refusal to pay on demand. The demurrer to the answer was properly overruled.

At the trial plaintiff rested his case on Ms own testimony and an admission by defendant that Wm. T. Jeter was at all times since January 1, 1903, president of the defendant, the Bank of Santa Cruz County.

Plaintiff testified, among other things: “I remember August 8, 1903, and of going to the banking house of the Bank of Santa Cruz County on that day, in the bank building, that portion of the bank building used for the transaction of bank business. I handed Mr. Jeter $1,000 in gold coin. The money was deposited in the bank. The bank has never repaid that money.”