SAM J. PULLEN et al., Executors, etc., of John W. Clarke, Sr., Deceased, Appellants, v. PLACER COUNTY BANK (a corporation), Respondent, 138 Cal. 169

HARRISON, J. This This cause was submitted to the superior court upon an agreed statement showing the following facts,— viz.: In November, 1897, John W. Clarke, Sr., had on deposit with the defendant the sum of twelve hundred dollars, which remained on such deposit until after his death. During that month, for the purpose of making a gift of one thousand dollars to his son, John W.

Clarke, Jr., he drew a check upon the defendant for that amount of money, and delivered it to his son, saying that he could get the money from the bank; but, after delivering it to him, stated that he wished he would not present it until after his death. The son complied with his wish, and did not present the check until the morning after his father’s death. He died September 29, 1898, and on September 30th the son presented the cheek to the bank, and it was paid. The bank had, however, been informed of the death of the father before the check was presented for payment.

The present action is brought to recover from the bank the amount of the check as money deposited with it by the deceased, and held on deposit at the time of his death. The superior court rendered judgment in favor of the defendant, and the plaintiffs have appealed. The question presented upon the appeal is whether under the above facts the intended gift of the father to the son had become complete before his death, or whether it was merely inchoate.

If the transaction between them constituted a completed gift, the money represented by the check belonged to the son, and the bank was justified in paying it to him, while, on the other hand, if the gift had not been perfected, but was incomplete at the time of his death, the money in the bank belonged to his estate and descended to his heirs, and its payment by the bank was unauthorized.

Section 1146 of the Civil Code defines a gift to be “a transfer of personal property made voluntarily and without consideration”; and under

section 1147 a verbal gift is invalid unless accompanied by a delivery to the donee of the thing given, if it is capable of delivery, or of the means of obtaining its possession and control. ‘ ‘ There can be no gift without an intention to give and a delivery, either actual or constructive, of the thing given. There must be both a purpose to give and the execution of this purpose. The purpose must be expressed —either orally or in writing—and it must be executed by the actual delivery to the donee of the thing given, or of the means of getting possession and enjoyment thereof.

It is the fact of delivery that converts the unexecuted and revocable purpose into an executed and complete gift.” (Knight v. Tripp, 121 Cal. 674.) A gift vests the donee with the absolute property in the thing given, and it is no longer subject to the control of the donor. If, on the other hand, the thing given remains under the control of the donor, or (except in the ease of a gift causa mortis) is subject to his revocation, his gift is not complete. There is no difference, however, in this particular between a gift inter vivos and a gift causa mortis.

In either ease it is not complete unless there is either an actual or symbolic delivery to the donee of the thing to be given. (Knight v. Tripp, 121 Cal. 674.) In the present case the gift was verbal, and the property which the father intended to give to his son was money on deposit in the bank. The check was not itself the property which the father intended to give, but was merely a direction to the defendant to pay one thousand dollars to the son. It indicated the amount to be given and the place at which the money was to be delivered.

The check was not a symbolic delivery of the money, but it was a delivery of the means by which the son could obtain possession of the money. It was, however, subject to revocation by the father at any time before its presentation to the bank, and was in fact revoked by his death. The request of the father that the son would not present the check until after his death did not affect the sufficiency of the gift.

If the gift were complete by his delivery of the check, such subsequent request would not destroy its validity, and if not then complete, this request would not have the effect to dispense with its presentation for the purpose of making it complete. By the failure of the son to present the check, there was no delivery of the money during the lifetime of the father, and the gift was therefore not complete.

This question has frequently arisen in cases where a gift causa mortis is claimed by reason of a check given for that purpose, but it is invariably held that unless the cheek is presented in the lifetime of the donor it is ineffective. (Harris v. Clark, 3 N. Y. 93; In re Beak’s Estate, L. R. 13 Eq. 489.) Under a state of facts similar to those in the present case presented in Simmons v. Cin.

Savings Society, 31 Ohio St. 457, the court held that the gift was incomplete, saying: “Until the cheek was either paid or accepted the gift was incomplete; and in the absence of such payment or acceptance the death of the drawer operated as a revocation of the check. It is well settled that, in order to constitute a valid gift, there must be a complete delivery of the subject of the gift, either actual or constructive.

The check in the present instance was a mere order or authority to the payee to draw the money; and being without consideration, it was subject to be countermanded or revoked while it remained unacted on in the hands of the payee.” The same rule is declared in Hewitt v. Kaye, L. R. 6 Eq. 198; Second Nat. Bank v. Williams, 13 Mich. 282; Thresher v. Dyer, 69 Conn. 404; Gerry v. Howe, 130 Mass. 350; Appeal of Waynesburg College, 111 Pa. St. 130.

The relation between a bank and its depositors is that of debtor and creditor respectively, and the money deposited with the bank becomes its property, and is no longer under the control of the depositor. A check is only a direction to the bank to pay a certain sum of money to the person therein named. The money does not thereby become the property of the payee, nor is it placed beyond the control of the depositor. Until it is' presented to the bank, the drawer may countermand its payment, or he may direct a different disposition of the moneys to his credit in the bank.

Neither does a check of itself before presentation operate as an assignment to the payee of the money for which it was drawn. “An ordinary uncertified check upon a general account is neither a legal nor an equitable assignment of any part of the sum standing to the credit of the depositor, and confers no right upon the payee that he can enforce against the bank.” (O’Connor v. Mechanic’s Bank, 124 N.

Y. 324.) “A check upon a bank in the usual form, not accepted or certified by its cashier to be good, does not constitute a transfer of any money to the credit of the holder; it is simply an order which may be countermanded and payment forbidden by the drawer at any time before it is actually cashed. It creates no lien upon the money which the holder can enforce against the bank. It does not of itself operate as an equitable assignment.” (Florence Mining Co. v. Brown, 124 U. S. 385.) In Hopkinson v. Forster, L.

R. 19 Eq. 74, the Master of the Rolls, Sir George Jessel, said: “A check is clearly not an assignment of money in the hands of a banker; it is a bill of exchange payable at a banker’s. The banker is bound by his contract with his customer to honor the check when he has sufficient assets in his hands. If he does not fulfill his contract he is liable to an action .by the drawer in which heavy damages may be recovered if the drawer’s credit has been injured;” and referring to some expression of Mr.

Justice Byles, said: “I am quite sure that learned judge never meant to lay down that a banker who. dishonors a check is liable to a suit in equity by the holder.” (See, also, Chap man v. White, 6 N. Y. 412; Bullard v. Randall, 1 Gray, 605; Harrison v. Wright, 100 Ind. 515; Dickinson v. Coates, 79 Mo. 250; National Com. Bank v. Miller, 77 Ala. 168;; Attorney-General v. Continental Life Ins. Co., 71 N.

Y. 325.) If it could be held that by drawing a check the drawer thereby assigned that amount of money to the payee, it would follow that the money represented by the cheekbecame thereby the property of the payee, and that he could maintain an action against the bank for its recovery, subject to any defense that the bank might have against the depositor; but the almost universal line of authority is, that such action cannot be maintained.

The bank upon which a check is drawn has no contract with the payee, and is under no legal obligation to him, and its refusal to pay the check does not give to the payee a right of action against it. “The holder takes the check on the credit of the drawer, in the belief that he has funds to meet it, but in no sense can the bank be said to be connected with the transaction.

If it were true that there was a privity.of contract between the banker and holder when the check was given, the bank «would be obliged to pay the check, although the drawer before it was presented had countermanded it, and although other checks drawn after it was issued, but before payment of it was demanded, had exhausted the funds of the depositor. If such a result should follow the giving of checks, it is easy to see that bankers would be compelled to abandon altogether the business of keeping deposit accounts for their customers.” (Bank of the Republic v.

Millard, 10 Wall. 152.) The same rule is declared in First Nat. Bank of Washington v. Whitman, 94 U. S. 343; Carr v. National etc. Bank, 107 Mass. 45; Boettcher v. Colorado Nat. Bank, 15 Colo. 16; Grammel v. Carmer, 55 Mich. 201; Brennan v. Merchants etc. Bank, 62 Mich. 343; Creveling v. Bloomsbury Nat. Bank, 46 N. J. L. 255. The authorities upon this subject are reviewed in Fourth St. Bank v. Yardley, 165 U.

S. 634, and the rule stated to be: “As between a check-holder and the bank upon which such cheek is drawn, it is settled that unless the check be accepted by the bank an action cannot be maintained by the holder against the bank. It is also settled that a check drawn in the ordinary form does not as between the maker and payee constitute an equitable assignment pro tanto of an indebtedness owing by the bank upon which the check has been drawn.” In Illinois (Munn v. Birch, 25 Ill. 35) and in Iowa (May v.

Jones, 87 Iowa, 188) it is held, contrary to the great weight of authority, that the drawing of a check upon his bank by the depositor has the effect to assign that amount of money to the payee of the check. Of course, under this rule a right of action would be thereby created in favor of the payee of the check, and accordingly it is held in these states that the payee may maintain an action against the bank for the amount of the check. The doctrine is, however, somewhat modified in Illinois, in Bank of Antigo v.

Union Trust Co., 149 Ill. 343, where it is held that the check operates as such assignment only as between the drawer and the payee, and that the bank cannot be held liable until notified of the assignment by a presentation of the check for payment. It seems illogical, however, to hold that by drawing a check the money is assigned to the payee, and also that the owner may after-wards by drawing other checks take from the bank the money which he has once assigned.

In Kentucky, different from any other jurisdiction, it is held that the bank holds the money of its depositor as bailee, and agrees as a part of its business to pay this money out as the depositor may draw his checks for it. (See Weinstock v. Bellwood, 12 Bush, 139.) In a note by Professor Ames to Hopkinson v. Forster, L. R. 19 Eq. 74, in Ames’s Cases on Bills and Notes (vol. 2, p. 735) he says: “It is perfectly clear that the holder of an uncertified check has no claim either at law or in equity against the bank upon which it is drawn”—citing a large number of authorities in support of the proposition.

Wheatley v. Strobe, 12 Cal. 92, and Pope v. Huth, 14 Cal. 403, cited by the respondent, were neither of them the case of a check, but were cases in which a bill of exchange was drawn for the full amount of a debt owing by the drawee to the maker of the bill, and it was held that an equitable assignment of the debt was thereby created. There can, however, be no equitable assignment of a chose in action for which there is a want of consideration. (Second Nat. Bank v. Williams, 13 Mich. 282.) Nor can there be an equitable cause of action for the enforcement of a gift.

Equity will not lend its aid to perfect a gift that is incomplete. In Cloyes v. Cloyes, 36 Hun, 145, the plaintiff sought to recover from the defendant the amount of a check which he had drawn in her favor as a gift. The court said: “The action cannot be maintained upon the theory that the cheek was a valid gift. The word ‘gift’ signifies an actual transfer in prYesenti of 'property without consideration. The check did not transfer in prcesenti to the payee four hundred dollars or any part of the fund standing to the credit of the drawer upon the‘books of the drawee. It was a naked promise.

The check being without consideration, this action cannot be sustained. There is a broad distinction between the gift of the check or obligation of a third person and a gift of the donor’s promise to pay.” Under these authorities, it must be held that the payment of the cheek by the bank was unauthorized; that the money deposited with it by the plaintiffs’ testator, and held by it at the time of his death, was a part of his estate, and that the plaintiffs are entitled to recover the same from the defendant.

The judgment is reversed, and the superior court is directed to enter judgment upon the agreed statement of facts in favor of the plaintiffs. Van Dyke, J., and Temple, J., concurred. Garoutte, J., concurred in the judgment. 51 Am. Dec. 352, and note. 27 Am. Rep. 521. 56 Am. Rep. 252, and note. 57 Am. Dec. 464. 61 Am. Dec. 433. 58 Am. Rep. 805. 49 Am. Rep. 228. 54 Am. Rep. 50. 27 Am. Rep. 55. 9 Am. Rep. 6. 54 Am. Rep. 363. 50 Am. Rep. 417. 73 Am. Dec. 522.