
    John J. Sheldon, as Administrator, etc., App’lt, v. Rufus Heaton, Resp’t. (Two cases.)
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 6, 1895.)
    
    1. Limitation — Deposit.
    A cause of action for money left on deposit does not accrue until demand,
    3. Same — Due bill.
    An instrument, reciting “ Due S. $178,” is a promissory note due immediately, and the statute begins to run forthwith.
    3. Same — Pabol evidence.
    Parol evidence is inadmissible to show that such instrument is not payable immediately, but, by agreement of the parties, is not to be due till demand.
    4. Evidence — Presumption—Payment.
    The payment of a deposit will not be presumed, though thirty years-have elapsed since it was made, where the depositor died eight years after making the deposit, and no administrator was appointed till twenty-one years after that time.
    Appeal from a judgment, dismissing the complaint in each, case.
    
      William H. Dunn (T. F. Conway, of counsel), for app’it; James B. Stearns (G. H. Beckwith, of counsel), for resp’t
   Putnam, J.

— These cases were tried and may be considered together. The first above entitled action was brought to recover for money deposited with defendant, and for which he delivered to plaintiff’s intestate an instrument, of which the following is a. copy :

“$300.
“ Rec’d of Mrs. M. M. Sheldon, three hundred dollars on deposit- “ Rouse’s Point, August 20, 1864. R. Heaton.”

The action was commenced thirty years after the execution of the instrument. Mary E. Sheldon, the party to whom the paper was delivered, died on August 21, 1872, and plaintiff was appointed her administrator on May 2, 1893. Defendant, among other defenses, set up in his answer the statute of limitations as a bar to the-action On the trial the court below held that the statute of limitations had run against the demand of the plaintiff, that an action could have been brought at once on the instrument above set outr and the beginning of the action would have been sufficient demand, and the trial justice granted defendant’s motion for a nonsuit.

It seems quite clear from the written contract between the parties above set out, as well as from the oral evidence given on the trial,, that the transaction between the defendant and Mrs. Sheldon was a deposit, and not a loan. That there was no right of action against the defendant until after a demand, and hence that plaintiff’s claim was not barred by the statute of limitations. Payne v. Gardiner, 29 N. Y. 146; Smiley v. Fry, 100 N. Y. 262; Boughton v. Flint, 74 N. Y. 476-482. Hone of the authorities cited by the learned counsel for respondent conflict with the doctrine settled in Payne v. Gardiner, supra. In this case the parties, by their written contract, have said that the money which the plaintiff sues to recover was received as a deposit; hence it was not due until demanded, •and the action was not barred by the statute of limitations. ' It is possible that the plaintiff’s demand could have been defeated as stale, and presumed paid on account of the great lapse of time between the deposit of the money and the commencement of the .action. But it is held that the presumption of payment arising from lapse of time in a case where the statute of limitations has not run is not conclusive, but merely presents a question of fact for the jury. Macauley v. Palmer, 125 N. Y. 842; 36 St. Rep. 175. In Bean v. Tonnele, 94 N. Y. 381-385, Andrews, J., says:

“ In Jackson v. Sackett, 7 Wend. 94, many of the cases on- the presumption arising from lapse of time were referred to, and it was held, that the presumption was one of fact, and not of law, and that it was for the jury to draw the conclusion upon all the facts and circumstances of the case."

In Owen v. Calhoun, 29 St. Rep. 302, it was°said that the presumption of payment arising from lapse of time was one of fact; yet, where the evidence is such that the jury must give effect to the presumption, and a contrary verdict would- be set aside as against the weight of evidence, the court may dismiss the complaint and direct a verdict. In this case we are of opinion that the court was not justified in talcing the case from the jury under the doctrine stated in the case last cited. Plaintiff’s intestate, who made the deposit with defendant, died about eight years after the transaction, and from that time until the demand was made, immediately preceding the action by the plaintiff, there was no administrator of her estate, and hence no person who could have demanded the deposit of defendant; no person, in fact, to whom the defendant could have paid the money left with him by deceased. Hence the-case is subtantially the same as if only eight years had elapsed between the delivery of the money and the demand made of defendant. Under the circumstances, we think the presumption of payment arising from the lapse of time was not so irresistible as to justify the withdrawal of the question of fact from the jury. In Macauley v. Palmer, supra, we judge from the recitals contained in the report of the cause that the action was not commenced for over twenty years after the cause of action .accrued. In Boughton v. Flint, supra, the proceeding before the surrogate appears to have been had very many years after the money had been placed in the hands of the testator. Assuming, therefore, that there could arise a presumption of payment of a -claim for money deposited, not barred by the statute of limitations, and where no demand of payment had been made, owing to the lapse of time, we think that under the facts and circumstances appearing in this case the trial judge should have submitted the question to the jury. It follows that the judgment in the first above entitled action should be reversed, and a new trial granted ; costs to abide the event.

The second action was also brought to recover money deposited with defendant by plaintiff’s intestate and for which defendant gave her the following paper:

“$178.33.
“Due Mrs. M. M. Sheldon, one hundred and seventy-eight 33-100 dollars.
“ Rouse’s Point, April 29, 1863.
“ [Signed] R. Heaton.”

The defendant, in his answer, set up, with other defenses, the statute of limitations as a bar to the action, and the court below dismissed the complaint on that ground. The paper given by defendant to Mrs. Sheldon was a promissory note. Russell v. Whipple, 2 Cow. 536: Kimball v. Huntingdon, 10 Wend. 675; Sackett v. Spencer, 29 Barb. 180. And, no time of payment being mentioned, it was payable immediately. Cornell v. Moulton, 3 Denio. 12, 13. Therefore it appears that on April 29, 1863, the defendant and Mrs. Sheldon had a transaction by which the latter delivered to the former $178.33, and a written agreement was then made between the parties, by which defendant agreed to pay the sum advanced to Mrs. Sheldon immediately. Under the written contract deceased could sue at once without a demand. An action would have been a demand. We are of opinion that, the parties to the transaction in question having voluntarily entered into a written contract, their rights are to be determined by the writing, and its terms cannot be varied by paroi testimony. Plaintiff would not claim that it could be shown by paroi evidence that the defendant was to allow Mrs. Sheldon interest on the money advanced, or that it could be shown that there was an agreement that the money should not be paid for a year or more. Under the written contract the $178.73 advanced were payable immediately. Yet the plaintiff seeks to show by paroi testimony that the oral contract of the parties was that the money should not be paid until after a demand, which demand was not made' until over thirty years had elapsed. We are of the opinion that the terms of the written contract could not he varied by an oral agreement made at the time of its delivery. See Read v. Bank of Attica, 36 St. Rep. 894; 27 N. E. 250; Carter v. Hamilton, 11 Barb. 147 — 150. It follows that the trial judge disposed of the case properly on the trial, and hence that the judgment should be affirmed, with costs. All concur.  