The Hawaiian gazette., 1884-01-16
Supreme Court of the Hawaiian Islands -
In Banco.
CEcL BEowE, ADMIR-, ETo, vs.. BISHOP d Co.
Bsors Juil, CD, McCuly and dustin, J.J
OPINION OF THE CoUEr " AUSTIN, ].

OPINION OF THE CoURT BT AUsrIs,J
This is an action of assumpsit in which tue
Chief Justice below directed a verdict for the de
PENDANTS.
The facts on which the plaintiff claimed to re-
cover are substantially follows: The defendants
are bankers and have department Of their bust
ness which they term a Savings Bank. pass
book on this Savings Bank is presented which
shows deposit on April 18th, 1879 of three hun
dred dollars in silver and credits of interest
making with the principal on March 18th, 1888
the sum of 1872 Il.
These deposits arc preceded by the statement.
Bishop d Co. In account with Lukela Kaai-
manu- TO order of his father Kaaimanu.n
The plaintiff sues as administrator of Lukela
haaimanu who died minor and who was the son
of kaaimanu who is also dead and whose admins
traitor duly appointed was as such paid the sum
claimed by the defendant on March 18th, 1879 ON
presentation by him of the said pass book and
letters of administration. IL was also shown that
II was a rule of the bank to pay deposits only on
presentation of the deposit book, and also rule
to pay only to the person to whose order the
money was payable and not to the person for
whose benefit the money was deposited. de-
mand and refusal Of payment by the defendant
to the plaintiff was also shown.
The best view that can be taken for the plaintiff
is that the fund belonged to his ntestate and that
he allowed his father Kaaimanu TO keep his bank
book. and made the money mentioned in il pay
able TO his fathers order, and told the defendants
in writing so to pay it. But that his own death
and the death OF his father also were each suffi-
cient TO revoke the power to draw the money in
behalf Of the fathers estate, and 50 the money
was improperly paid over.
This Wow cannot be SUSTAINED. The words III
the bank book were sufficient to constitute valid
direction to the defendants to pay the money only
to the order of .he father. From Il the defendants
had right to infer, that the father had for value
given by him. the right to draw the money The
delivery of the book, and the words written in it.
were equivalent to a draft or a check on the de
PENDANTS bank payable to the order of the father
and at the fathers death his administrator could
draw the money, as he could on such draft or
check. The defendants were not agents of any
body They were mere Repositories. As such
they were bound to deliver the money 10 the father
or his representative as directed by the son the
bailor.
Sec Story on Bailments, Secs lO2, 1884, and 1O7.
If before payment the plaintiff had notified the
defendants not to pay the money the case might
have been different, but there is no such pretence
See Id, Section 10l
Furthermore we think that the rules Of the de-
PENDANTS as a savings bank which were proved,
were binding upon the plaintiffs intestate as a
depositOr, and that under those rules tho defend.
ants properly made the payments TO the fathers
administrator.
See Wall VS.. Proyident Institution for Savings.
3rd Allen, Sc, p n. Y. Il. p, 543.
But the facts show that when the deposit was
made the plaintiffs intestate was an infant; and
the presumption would be that the father deposited
his own money. That he retained the,possession.nf
the bank book and caused the money to be made |
payable to his own order. II would seem that he |
intended git OF the money 10 the son. But by |
his acts be controlled, and intended to keep con
troll Of the fund. II this were So the gift was in
complete, because there was no delivery.
In Little Willets, 30 Barb. 1853. the Court |
declare wnai think is the true rule, that mo /
gift inter eros Is sustained comforting title TN
less the change of possession be positive, and the
donor IN no condition to repOssess himself Of the
s1biect matter Of the gift to recall the same
Further; In Phelps vs. Phelps . Bars. 12l. it is
held thai A mere promise to give money cannot
be enforced. even if put in the form Of pfoniis-
sorry note; nor can spch note, when given BY
parent to child, be enforced against the makers
estate after his death"
See also Harris vs.. Clark, Com. n. Y. r.. p. 80,
where a draft upon a third person was given by a
donor 10 dGnee which it was held could not be
enforced as gift against the donors estate after
lis death
Sec also Brabrook vs.. Boston Five Cents Savings
Bank, 10i Mass. p. Us.
The plaintiff oliims that in this case there was
delivery by the donor to a third party, the de-