Opinion
October 10, 1957 —
November 5, 1957.
APPEAL from a judgment of the circuit court for Milwaukee county: ROBERT C. CANNON, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by N. Paley Phillips of Milwaukee.
For the respondent there was a brief by Bendinger, Hayes Kluwin, attorneys, and Donald J. Tikalsky of counsel, all of Milwaukee, and oral argument by Mr. Tikalsky.
Action by the plaintiff Nicholas T. Peppas to recover from the defendant bank the amount of a check charged against plaintiff's account with such bank, which check bore a forged indorsement.
The plaintiff, a tavern operator, on April 18, 1946, issued a check in the sum of $625, payable to the order of Perplies Brewing Company, in down payment for beer to be thereafter delivered, and handed the check to one Ernest Perplies, believing him to be an agent, or officer, of the payee corporation. Ernest Perplies indorsed the check "Perplies Brewing Co., Ernest Perplies," and presented the same to the defendant, drawee bank which cashed it on April 20, 1946, and charged it to plaintiff's checking account. In May, 1946, the defendant bank furnished the plaintiff with a statement of his account showing the payment of such check, and accompanied such statement with the canceled check.
Ernest Perplies was not an agent, or officer, of the Perplies Brewing, Company and had no authority from it to indorse and cash such check. On December 4, 1947, plaintiff instituted suit in the circuit court for Milwaukee county against the Perplies Brewing Company for the beer that he alleged had been paid for by such $625 check and which had never been delivered. The brewing company served its answer under date of April 27, 1948, wherein it alleged that no agency existed between Ernest Perplies and it, and denied that it had received the check. The case did not come to trial until 1952, and judgment was then rendered dismissing the plaintiff's complaint.
Under date of March 5, 1953, plaintiff instituted the instant action in the civil court of Milwaukee county. As a defense, the defendant bank alleged in its answer that plaintiff's cause of action was barred by the six-year statute of limitations set forth in sec. 330.19, Stats. The defendant thereafter moved for summary judgment, which was denied by the civil court. The defendant appealed to the circuit court, which by judgment entered February 18, 1957, granted defendant's motion for summary judgment, and dismissed the plaintiff's complaint upon its merits with costs. From such judgment the plaintiff has appealed to this court.
When does a cause of action by a depositor against a bank to recover the amount of a check bearing a forged endorsement, which the bank had charged against the depositor's account, accrue so as to start the statute of limitations running? This is the sole question before us on this appeal.
In plaintiff's affidavit opposing the motion for summary judgment, he averred that he first learned that the indorsement of the check had been made by an unauthorized party when the circuit court for Milwaukee county, in November, 1952, entered its findings of fact in the action which he had commenced against the Perplies Brewing Company, drawee of the $625 check. It is plaintiff's contention on this appeal that the date of the commencement of the instant cause of action did not accrue until his discovery of the facts establishing the forgery of the payee's endorsement to the check, and, therefore, the six-year statute of limitations had not run against his cause of action.
The law is well established that a general deposit in a bank, such as in a checking account, creates a debtor-and-creditor relationship between the depositor and the bank. No cause of action arises in behalf of the depositor for the deposit until demand has been made upon the bank and it has refused such demand, unless facts have arisen which dispense with such demand. 1 Morse, Banks and Banking (6th ed.), p. 743, sec. 322; 5B Michie, Banks and Banking (perm. ed.), pp. 299, 301, secs. 357a, 357b; 5 Zollmann, Banks and Banking (perm. ed.), p. 384, sec. 3422, and p. 393, sec. 3428.
While there is some division of authority on the point, the better-reasoned cases hold that the act of a bank in returning to the depositor, as a canceled voucher, a check bearing a forged endorsement, together with a statement or passbook showing the charging of the amount of such check to the depositor's account, is a denial of liability which dispenses with the necessity of a demand as a condition precedent for the depositor suing the bank to recover the amount of such check. Union Tool Co. v. Farmers Merchants Nat. Bank (1923), 192 Cal. 40, 218 P. 424, 28 A.L.R. 1417; Kansas City Title Trust Co. v. Fourth Nat. Bank (1932), 135 Kan. 414, 10 P.2d 896, 87 A.L.R. 334; and Masonic Benefit Asso. v. First State Bank (1911), 99 Miss. 610, 55 So. 408. These cases hold that the statute of limitations starts to run against the depositor's cause of action, to recover the amount of the check bearing the forged indorsement, as of the date the bank renders its statement to the depositor showing the charging of the check to the depositor's account. On this point see also 34 Am. Jur., Limitation of Actions, p. 102, sec. 123, and annotation, 87 A.L.R. 344.
We quote from the opinion of the Kansas court in Kansas City Title Trust Co. v. Fourth Nat. Bank, supra, as follows ( 135 Kan. at p. 422):
"The relation of a bank to its depositor is that of debtor and creditor, and the sum he has on deposit in his checking account is a debt of the bank payable to him on demand; yet because it is payable on demand he cannot sue the bank for the amount of his deposit until payment on demand has been made and refused; and such demand and refusal are necessary to set in motion the statute of limitations. But where the bank renders a statement to the depositor showing the status of his checking account, it says to him in effect, `This bank owes you this stated balance, and no more.' Such statement may fairly be construed as a notice that any claim the depositor may make in excess of the stated balance would be resisted by the bank. And in that view of the situation the depositor's formal demand for a greater sum and the bank's formal refusal to pay a larger sum would be unnecessary to perfect the depositor's cause of action, and likewise to set in motion the statute of limitations. If this is not the legal effect of the bank's monthly statement to its depositor, it is not apparent what function the monthly statement performs." (Emphasis supplied.)
The only, provision in sec. 330.19, stats., which makes the starting of the six-year period of limitation therein imposed dependent upon discovery by the aggrieved party of the facts giving rise to his cause of action, is to be found in sub. (7) of such statute. Such subsection provides that a cause of action for fraud shall not be deemed to have accrued until discovery by the aggrieved party of the facts constituting the cause of action. We believe this to be a proper case in which to invoke the rule of statutory construction of "expressio unius est exclusio alterius" (the expression of one thing excludes another). Therefore, having expressly made the accrual of the cause of action dependent upon the discovery of facts by the aggrieved party only in an action for fraud, it will be assumed that the legislature did not intend this stated exception to apply to the other causes of action embraced within sec. 330.19.
We, therefore, hold that plaintiff's cause of action accrued when he received the statement and canceled vouchers from the defendant bank in May, 1946, and that such cause of action was barred by the six-year period of limitation provided by sec. 330.19, Stats., at the time he commenced the instant action on March 5, 1953.
By the Court. — Judgment affirmed.