
    Read v. Bank of Attica.
    
      (Supreme Court, General Term, Fifth Department.
    
    December 30, 1889.)
    1. Pleading and Proof—Variance.
    In an action to recover money deposited with defendant bank, it appeared that a certificate of deposit was issued, payable to plaintiff “on return of this certificate. ” The complaint did not set up the certificate, but the answer did, and alleged that plaintiff was not the owner nor in possession of the certificate, but that before the commencement of the action had transferred it to one R., since deceased, whose executor demanded payment thereon. On trial the certificate was produced in evidence, and was not indorsed by plaintiff. Held, that defendant could not prove that the money, when deposited, was the money of R.
    8. Evidence—Parol to Vary Writing.
    Though the certificate did not bear interest, paroi evidence was admissible to prove that when it was handed to plaintiff he called attention to the fact, and interest was promised, as the certificate was payable on demand, and the promised in- . terest was conditioned that the money remain on deposit.
    Appeal from circuit court, Erie county.
    Action by John P. J. Bead against the Bank of Attica, to recover a deposit of $4,152.64, and interest. There was a judgment for plaintiff, from which defendant appeals.
    Argued before Barker, P. J., and Dwight and Macomber, JJ
    
      Spencer Clinton, for appellant. O. O. Cottle, for respondent.
   Barker, P. J.

This action was brought to recover the sum of money deposited by the plaintiff with the defendant. The facts are stated in a bill of exceptions. The deposit was made by the plaintiff in person, and the defendant, at the tiir^e the same was made, issued to him a certificate in this form: “Buffalo, March 25th, 1879. J.'J. P. Bead has deposited in this bank four thousand one hundred and fifty-two and sixty-four one hundredths dollars, payable to the order of J. J. P, Bead on return of this certificate,”— which was signed by the cashier and teller of the bank. The complaint alleged the making of the deposit, and a demand for its repayment, which was refused by the defendant; no reference being made whatever to the issuing and delivery of the certificate. The defendant in its answer admitted the making of the deposit by the plaintiff at the time, and for the sum stated, and set up a delivery of the said certificate, and then averred that the said certificate was not in the possession of the plaintiff, but that it was in the actual possession of one Rockwell, who claimed to be the owner and entitled to the moneys payable thereby. In a separate answer it is also alleged that the plaintiff was not in possession nor the owner of the certificate, but the same was by him, before the beginning of this action, transferred to one Mrs. Rockwell, now deceased! whose executor, George W. Rockwell, is now in possession thereof, claiming to be the owner and holder of the same, and to be the owner of and entitled to the moneys so received by the defendant on deposit from the plaintiff, and that the said Rockwell, as such executor, had demanded of the defendant the payment of the moneys to himself. On the trial the certificate was produced by Rockwell, not voluntarily, but as a witness in the plaintiff’s behalf, who attended in obedience to a subpoena duces tecum. When produced, the certificate was not indorsed by the plaintiff, and, after making’ some oral proof as to the agreement of the defendant to pay interest on the deposit, the plaintiff rested. The defendant then offered to prove that the money, when deposited, was the money of Mrs. Rockwell, and was received by the plaintiff as her agent, and deposited in his name, and that the certificate of deposit, in fact, belonged to her, and that demand has been made upon the defendant by the persons representing her estate for the payment of the certificate. If the facts are as the defendant claimed them to be, and offered-to show by proper evidence, the plaintiff, when the deposit was made, held the funds as the agent or trustee of his sister Mrs. Rockwell, and in justice and equity they belonged to her personal representatives, or those who may have otherwise succeeded to her personal estate. The circumstance that the plaintiff deposited the money in his own name does not give him, as against the real owner, any right or title to the same. Van Alen v. Bank, 52 N. Y. 1; Viets v. Bank, 101 N. Y. 563, 5 N. E. Rep. 457. This proposition is based upon the principle, well settled, viz., that so long as money or property belonging to the principal, or the proceeds thereof, may be traced and distinguished in the hands of the' agent or his representatives or assignees, the principal is entitled to recover it, unless it has been transferred for value, without notice. As the defendant failed to prove that the certificate was indorsed by the plaintiff, or that he transferred the same by assignment or otherwise to Mrs. Rockwell, as her property, the defendant’s position cannot be maintained, unless it is able to show that the funds deposited were the funds of his sister Mrs. Rockwell. The whole defense rests for its support upon this contention of the defendant. Assuming that to be true, then, in an action in proper form, with all -the necessary parties before the court, the principal could recover the moneys from the bank; and we also think that if the bank had before the commencement of this action paid the moneys to the true owner, in discharge of its liability, it would have been a perfect defense to this action. Van Alen v. Bank, supra. If the facts which the defendant offered to show have been properly pleaded and proved, then the legal proposition would have been presented whether in this action, founded on the defendant’s promise, it could defeat a recovery by showing that the funds when deposited belonged to another, who had demanded the payment of the same, such ownership not having been recognized by the defendant, by payment of the money deposited. The plaintiff’s position is that, so long as the bank retains the money, he may maintain a common-law action on its promise to refund the money, and the question is not now presented whether the claimant could recover the money in an equitable action, with all the necessary parties before the court. We may, however, pass all these questions without further consideration, for the reason that the defendant did not set up in his answer as a defense the facts which it offered to prove. There is no averment in the answer that the funds, when deposited, were the funds of Mrs. Rockwell. The claim of the defendant, as set forth in the answer, that the funds deposited belonged to Mrs. Rockwell in her life-time, is based upon the averment that the plaintiff transferred the certificate to her in her life-time, and that her executor is entitled to the moneys deposited with it by virtue of the transíer of the certificate. No issue was tendered on the controlling fact which it offered to prove in support of its defense. For that reason, among others, as the bill of exceptions shows, the court ruled out the offer. There was no request made by the defendant so as to permit the proofs to be made, and without an amendment to that effect the defendant could not give evidence in support of the facts stated in the offer.

The certificate did not bear interest, and the plaintiff was permitted to-prove that, after the same was made out and handed to the plaintiff at the cashier’s counter, he discovered that no rate of interest was mentioned in the certificate, and he called the attention of the cashier to the fact, who then promised to allow 3 per cent, on the deposit, if it remained for any length of time. As the certificate was payable on demand, the money could have been withdrawn any moment by the payee of the certificate. The promise was conditional and executory, and was based upon a good consideration, as the payee allowed the money to remain with the bank for many years thereafter. No rule of evidence was violated in receiving proof of the defendant’s paroi promise to pay interest after it had received the money and delivered the certificate into the hands of the plaintiff. We have examined the other rulings made on the trial to which exceptions were taken by the defendant, and fail to discover any error. Judgment affirmed, with costs. All concur.  