{ "id": 2777599, "name": "Donald K. ALLISON, Plaintiff-Appellee, Cross-Appellant, v. FIRST NATIONAL BANK IN ALBUQUERQUE, Defendant-Appellant, Cross-Appellee", "name_abbreviation": "Allison v. First National Bank", "decision_date": "1973-06-06", "docket_number": "No. 1110", "first_page": "283", "last_page": "291", "citations": [ { "type": "official", "cite": "85 N.M. 283" }, { "type": "parallel", "cite": "511 P.2d 769" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "435 S.W.2d 57", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10127040 ], "opinion_index": 0, "case_paths": [ "/sw2d/435/0057-01" ] }, { "cite": "407 F.2d 1318", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2112215 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/f2d/407/1318-01" ] }, { "cite": "252 N.E.2d 839", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "pin_cites": [ { "page": "845" } ], "opinion_index": 0 }, { "cite": "146 Ind.App. 122", "category": "reporters:state", "reporter": "Ind. App.", "case_ids": [ 1584126 ], "year": 1969, "pin_cites": [ { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/ind-app/146/0122-01" ] }, { "cite": "118 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "667" } ], "opinion_index": 0 }, { "cite": "202 Va. 543", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 563231 ], "year": 1961, "pin_cites": [ { "page": "546" } ], "opinion_index": 0, "case_paths": [ "/va/202/0543-01" ] }, { "cite": "76 N.M. 735", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8504809 ], "weight": 4, "year": 1966, "pin_cites": [ { "page": "745" }, { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/nm/76/0735-01" ] }, { "cite": "289 P. 47", "category": "reporters:state_regional", "reporter": "P.", "year": 1930, "pin_cites": [ { "page": "50" } ], "opinion_index": 0 }, { "cite": "157 Wash. 417", "category": "reporters:state", "reporter": "Wash.", "case_ids": [ 836998 ], "year": 1930, "opinion_index": 0, "case_paths": [ "/wash/157/0417-01" ] }, { "cite": "268 A.2d 327", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1970, "pin_cites": [ { "page": "329" } ], "opinion_index": 0 }, { "cite": "111 N.J.Super. 347", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 303645 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nj-super/111/0347-01" ] }, { "cite": "56 A.L.R. 529", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1928, "opinion_index": 0 }, { "cite": "1 S.W.2d 1008", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1928, "opinion_index": 0 }, { "cite": "175 Ark. 929", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1403587 ], "year": 1928, "opinion_index": 0, "case_paths": [ "/ark/175/0929-01" ] }, { "cite": "169 A.L.R. 1426", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1946, "opinion_index": 0 }, { "cite": "179 Or. 26", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 8641880 ], "weight": 2, "year": 1946, "pin_cites": [ { "page": "38" }, { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/or/179/0026-01" ] }, { "cite": "128 A.L.R. 137", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1940, "opinion_index": 0 }, { "cite": "290 N.W. 664", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1940, "opinion_index": 0 }, { "cite": "281 N.W. 714", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1938, "pin_cites": [ { "page": "720" } ], "opinion_index": 0 }, { "cite": "227 Iowa 1239", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 8646515 ], "weight": 2, "year": 1938, "pin_cites": [ { "page": "1247" } ], "opinion_index": 0, "case_paths": [ "/iowa/227/1239-01" ] }, { "cite": "66 P. 460", "category": "reporters:state_regional", "reporter": "P.", "year": 1901, "opinion_index": 0 }, { "cite": "11 N.M. 50", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 11271419 ], "year": 1901, "opinion_index": 0, "case_paths": [ "/nm/11/0050-01" ] }, { "cite": "60 Cal.Rptr. 336", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1967, "pin_cites": [ { "page": "342" } ], "opinion_index": 0 }, { "cite": "252 Cal.App.2d 208", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2174429 ], "year": 1967, "pin_cites": [ { "page": "217" } ], "opinion_index": 0, "case_paths": [ "/cal-app-2d/252/0208-01" ] }, { "cite": "78 Am.St.Rep. 294", "category": "reporters:state", "reporter": "Am. St. Rep.", "year": 1900, "opinion_index": 0 }, { "cite": "53 L.R.A. 232", "category": "reporters:federal", "reporter": "L.R.A.", "year": 1900, "opinion_index": 0 }, { "cite": "57 N.E. 1061", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1900, "opinion_index": 0 }, { "cite": "186 Ill. 440", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3228566 ], "year": 1900, "opinion_index": 0, "case_paths": [ "/ill/186/0440-01" ] }, { "cite": "242 S.W. 442", "category": "reporters:state_regional", "reporter": "S.W.", "case_ids": [ 8260497, 2284721 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/sw/242/0442-01", "/tex/111/0561-01" ] }, { "cite": "111 Tex. 561", "category": "reporters:state", "reporter": "Tex.", "case_ids": [ 2284721 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/tex/111/0561-01" ] }, { "cite": "201 Ala. 189", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 3610915 ], "weight": 3, "year": 1918, "opinion_index": 0, "case_paths": [ "/ala/201/0189-01" ] }, { "cite": "107 Fla. 431", "category": "reporters:state", "reporter": "Fla.", "case_ids": [ 1228747 ], "weight": 2, "year": 1932, "opinion_index": 0, "case_paths": [ "/fla/107/0431-01" ] }, { "cite": "116 N.E. 131", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1917, "opinion_index": 0 }, { "cite": "278 Ill. 490", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4872566 ], "year": 1917, "opinion_index": 0, "case_paths": [ "/ill/278/0490-01" ] }, { "cite": "85 Mont. 293", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 2414753 ], "weight": 2, "year": 1929, "pin_cites": [ { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/mont/85/0293-01" ] }, { "cite": "80 Mont. 174", "category": "reporters:state", "reporter": "Mont.", "case_ids": [ 4872739 ], "weight": 2, "year": 1927, "opinion_index": 0, "case_paths": [ "/mont/80/0174-01" ] }, { "cite": "184 P. 533", "category": "reporters:state_regional", "reporter": "P.", "year": 1919, "opinion_index": 1 }, { "cite": "25 N.M. 430", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4736433 ], "year": 1919, "opinion_index": 1, "case_paths": [ "/nm/25/0430-01" ] }, { "cite": "65 N.M. 335", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2846321 ], "weight": 2, "year": 1959, "opinion_index": 1, "case_paths": [ "/nm/65/0335-01" ] }, { "cite": "45 So.2d 342", "category": "reporters:state_regional", "reporter": "So. 2d", "opinion_index": 1 }, { "cite": "266 A.2d 849", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1970, "opinion_index": 1 }, { "cite": "110 N.H. 351", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 2360498 ], "year": 1970, "opinion_index": 1, "case_paths": [ "/nh/110/0351-01" ] }, { "cite": "427 F.2d 395", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2243705 ], "year": 1970, "opinion_index": 1, "case_paths": [ "/f2d/427/0395-01" ] }, { "cite": "380 U.S. 424", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525353 ], "weight": 3, "year": 1965, "opinion_index": 1, "case_paths": [ "/us/380/0424-01" ] }, { "cite": "290 N.W. 664", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1940, "opinion_index": 1 }, { "cite": "281 N.W. 714", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1938, "opinion_index": 1 }, { "cite": "227 Iowa 1239", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 8646515 ], "weight": 2, "year": 1938, "opinion_index": 1, "case_paths": [ "/iowa/227/1239-01" ] }, { "cite": "66 P. 460", "category": "reporters:state_regional", "reporter": "P.", "year": 1901, "opinion_index": 1 }, { "cite": "11 N.M. 50", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 11271419 ], "year": 1901, "opinion_index": 1, "case_paths": [ "/nm/11/0050-01" ] }, { "cite": "201 Ala. 189", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 3610915 ], "weight": 2, "year": 1918, "opinion_index": 1, "case_paths": [ "/ala/201/0189-01" ] } ], "analysis": { "cardinality": 1023, "char_count": 23032, "ocr_confidence": 0.759, "pagerank": { "raw": 2.2980506994850829e-07, "percentile": 0.7870549595748633 }, "sha256": "f6bf1b90f43382c4175f60577c56e26d3315c644fc5400aadd84e9410ed0fe6e", "simhash": "1:bfebcc2599381668", "word_count": 3869 }, "last_updated": "2023-07-14T15:38:26.265107+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LOPEZ, J., concurs.", "WOOD, J., dissents." ], "parties": [ "Donald K. ALLISON, Plaintiff-Appellee, Cross-Appellant, v. FIRST NATIONAL BANK IN ALBUQUERQUE, Defendant-Appellant, Cross-Appellee." ], "opinions": [ { "text": "OPINION\nSUTIN, Judge.\nThe defendant appeals from a judgment and plaintiff cross-appeals.\nThe sole question on defendant\u2019s appeal is: When does the period of limitation begin to run on a cashier\u2019s check? If a cause of action does not accrue against a bank until demand for payment is made, then the defendant\u2019s action is within the period of limitation since the demand did not occur until 1968 and suit was filed in 1970. On the other hand, if a cause of action accrues immediately upon issuance of the cashier\u2019s check or within a reasonable period of time after issue, then the period of limitation under \u00a7\u00a7 23-1-1 and 23-1-3, N.M.S.A.1953 (Vol. 5) has expired and the plaintiff\u2019s action is barred.\nThe trial court concluded as a matter of law that plaintiff\u2019s claim was not barred by the statute of limitations and defendant appeals. We affirm.\nThe plaintiff cross-appeals for failure of the trial judge to award actual and consequential damages as a result of defendant\u2019s wrongful dishonor of plaintiff\u2019s cashier\u2019s checks. We reverse.\nA. The statute of limitations did not run.\n2 Anderson, Uniform Commercial Code, 2nd Ed., p. 612, \u00a7 3-104:18 (1971) defines a cashier\u2019s check:\nA cashier\u2019s check is a draft drawn by the bank upon itself which is accepted by the act of issuance. * * * A cashier\u2019s check is a primary obligation of the bank, * * * and is an obligation to pay which ordinarily cannot be countermanded. It is issued by an authorized officer of a bank, directed to another person, evidencing the fact that the payee is authorized to demand and receive from the bank, upon presentation, the amount of money represented by the check. * * * [Emphasis added]\n10 Am.Jur.2d, Banks, \u00a7 544 says:\nA cashier\u2019s check is a bill of exchange, drawn by the bank upon itself, and is accepted by the act of issuance. * * * [Emphasis added]\nThere is no legal difference in the meaning of the terms \u201cdraft\u201d and \u201ccashier\u2019s check.\u201d Montana-Wyoming Assn. v. Commercial Bk., 80 Mont. 174, 259 P. 1060 (1927); Advance-Rumley Thresher Co., Inc., v. Hess, 85 Mont. 293, 279 P. 236, 237 (1929); The People v. Miller, 278 Ill. 490, 116 N.E. 131, L.R.A.1917E 797 (1917); Cochrane, as Liqdr. v. F.E.C. Ry. Co., 107 Fla. 431, 145 So. 217 (1932).\nIn legal effect, as between the bank and payee, a cashier\u2019s check is the same as a certificate of deposit or a certified check. Walker v. Sellers, 201 Ala. 189, 77 So. 715 (1918); Middlekauff v. State Banking Board, 111 Tex. 561, 242 S.W. 442 (1922); Clark v. Chicago Title & Trust Co., 186 Ill. 440, 57 N.E. 1061, 53 L.R.A. 232, 78 Am.St.Rep. 294 (1900).\nBank of America v. Cranston, 252 Cal.App.2d 208, 217, 60 Cal.Rptr. 336, 342 (1967) followed Walker v. Sellers, supra, and then stated:\nThe substance of a certificate of deposit and of bank drafts, cashier\u2019s checks, certified checks and money orders thus appears to be the same. Each is issued in consideration of the placing, or transfer or deposit of money or credit, in or to a bank. Each is a negotiable instrument pledging the credit of the bank to the holder. And in each case the relationship of debtor and creditor arises between the holder and the bank.\nWe emphasize the nexus between \u201ccashier\u2019s checks\u201d and \u201cdrafts,\u201d \u201cbills of exchange,\u201d and \u201ccertificates of deposit.\u201d Drafts, bills of exchange and certificates of deposit are covered by the Uniform Commercial Code. One of the purposes of this code is \u201c * * * to simplify, clarify and modernize the law governing commercial transactions; * * * \u201d Section 50A-1-102(2) (a), N.M.S.A.1953 (Repl.Vol. 8, pt. 1).\nSection 50A-3-104(2) (a), (c), N.M.S.A. 1953 (Repl.Vol. 8, pt. 1) pertains to form of negotiable instruments, such as \u201cdraft\u201d and \u201ccertificate of deposit.\u201d\nSection (2)(a) and (c) read:\n(2) A writing which complies with the requirements of this section is\n(a) a \u201cdraft\u201d (\u201cbill of exchange\u201d) if it is an order;\nsfi \u2021 % ijs iji\n(c) a \u201ccertificate of deposit\u201d if it is an acknowledgment by a bank of receipt of money with an engagement to repay it;\nSection 50A-3-122(2) and (3) pertain to the accrual of a cause of action for (1) a demand \u201ccertificate of deposit\u201d and (2) \u201cdraft.\u201d The cause of action accrues (1) upon demand and (2) a demand following dishonor of the instrument. We have found no judicial interpretation of this section. But it is apparent that this section has hammered out an exception to the general rule that a cause of action on a demand \u201cinstrument\u201d accrues at the time of its issuance.\nWe hold that a \u201ccashier\u2019s check\u201d falls within the category of a \u201cdraft\u201d (\u201cbill of exchange\u201d) and a \u201ccertificate of deposit.\u201d It has long been the rule in New Mexico that the statute of limitations does not begin to run against a certificate of deposit until presentation and demand of payment. Bank of Commerce v. Harrison, 11 N.M. 50, 66 P. 460 (1901).\nThe only case to the contrary is Dean v. Iowa-Des Moines Bank, 227 Iowa 1239, 281 N.W. 714, 720 (1938), modified on other grounds, 227 Iowa 1239, 1247, 290 N.W. 664, 128 A.L.R. 137 (1940). The court looked upon the cashier\u2019s check as a bill of exchange; and \u201c * *' * At all times after the issuance defendant owed the debt, and there was a duty to pay. So far as the statute of limitations is concerned a cause of action had accrued. * * * \u201d We believe the court would have held to the contrary under the Uniform Commercial Code.\nNational banks are instrumentalities of the federal government, created for a public purpose. We have no knowledge from this record or from any source that a national bank throughout its corporate existence asserted the statute of limitations against a tardily presented cashier\u2019s check on the theory that it was a demand instrument, the cause of action of which accrued at the time of issuance and therefore covered by the six year, or any, statute of limitations. This may be declared to be a usage or custom in national banks for the protection of the public and not subject to the statute of limitations.\nNational banks must know \u201c * * * that cashier\u2019s checks ordinarily pass current as money in everyday business transactions. * * *\u201d First Nat\u2019l Bank v. Noble et al., 179 Or. 26, 38, 168 P.2d 354, 359, 169 A.L.R. 1426 (1946); see also Causey v. Eiland 175 Ark. 929, 1 S.W.2d 1008, 56 A.L.R. 529 (1928); Nat. Newark & Essex Bank v. Giordano, 111 N.J.Super. 347, 268 A.2d 327, 329 (1970). \u201cMoney\u201d is a synonym for \u201ccashier\u2019s check.\u201d Public policy and good faith should remove \u201ccashier\u2019s checks\u201d from accrual of a cause of action at the time of issuance because they are accepted on the faith and credit of the bank issuing them. Kohler v. First National Bank, 157 Wash. 417, 289 P. 47, 50 (1930).\nFinally, where a person purchases cashier\u2019s checks to be preserved as money and as a means of avoiding possession of currency, it is a cash transaction. The assets of the bank are increased to the amount of the cashier\u2019s checks, and the relation of trustee rather than that of debtor and creditor is created between the parties. Cochrane, as Liqdr. v. F.E.C. Ry. Co., supra.\nWhere a fiduciary relationship exists, the statute of limitations is not applicable. Bank of America v. Cranston, supra.\nA national bank is the guarantor of payment of its cashier\u2019s checks. It should not be allowed to avoid payment by use of a technical defense such as the statute of limitations.\nWe affirm the judgment for plaintiff.\nB. Plaintiff was entitled to damages for defendant\u2019s wrongfil dishonor of plaintiffs checks.\nThe trial court made the following findings of fact:\n6. That on September 30, 1968, defendant bank refused to honor the above numbered cashier\u2019s checks.\n7. That defendant\u2019s dishonor of said checks was zvrongful in that the checks had not been paid and were not void. [Emphasis added]\n8. The plaintiff has not shown any consequential loss or damage resulting to him by reason of the refusal of First National Bank in Albuquerque to pay in 1968 the cashier\u2019s checks issued to him in March, 1953, and is entitled to actual damages of $5,000.00.\nSection 50A-4-402, N.M,S.A.1953 (Repl.Vol. 8 pt. 1) is entitled \u201cBank\u2019s liability to customer for wrongful dishonor\u201d.\nA payor bank is liable to its ctistomer' for damages proximately caused by the wrongful dishonor of an item. When the dishonor occurs through mistake liability is limited to actual damages proved. If so proximately caused and proved damages may include damages for an arrest or prosecution of the customer or other consequential damages. Whether any consequential damages are proximately caused by the wrongful dishonor is a question of fact to be determined in each case. [Emphasis added]\n\u201cWrongful dishonor\u201d has not been defined by the Code. Official comment states that the above \u201c * * * section does not attempt to specify a theory. * * * \u201d It is different from \u201c \u2018 * * * failure to exercise ordinary care in handling an item * * * \u2019 \u201d It \u201c * * * excludes any permitted or justified dishon- or. * * * \u201d Uniform Commercial Code, \u00a7 4-402, Comments 2, 3 and 4.\n\u201cWrongful dishonor\u201d means a dishonor done in a wrong manner, unjustly, unfair, in a manner contrary to justice. See \u201cWrongful\u201d 46 Words and Phrases, p. 488. It excludes negligence or permitted or justified dishonor.\n\u201cMistaken dishonor\u201d means a dishonor done erroneously, unintentionally, a state of mind that is not in accord with the facts. See \u201cMistake\u201d 27 Words and Phrases, p. 568.\nThis section does not deal with \u201cintentional or wilful or malicious dishonor.\u201d This type of dishonor permits an award of punitive damages. In fact, we have also held that a bank \u201c* * * wrongfully dishonored the checks through mistake.\u201d Loucks v. Albuquerque National Bank, 76 N.M. 735, 745, 418 P.2d 191, 198 (1966).\nIn the instant case, on three separate occasions, from September 30, 1968 through January 6, 1969, the defendant dishonored the checks (1) by informing a Mexico bank that the checks were not outstanding; (2) that the checks had been paid by reissuance of new cashier\u2019s checks and requested the cashier\u2019s checks held by plaintiff be returned for cancellation; (3) again returning the checks unpaid. The bank failed to prove the reasons for its dishonor. This dishonor was not permitted or justified. This certainly created at least an issue for the trial court to decide. The trial court correctly found the dishonor was wrongful.\n\u201cConsequential damages\u201d are not defined in terms in the Uniform Commercial Code, but are used in the sense given them by the leading cases on the subject. 1 Anderson, Uniform Commercial Code, 2nd Ed., p. 48.\nJn 3 Anderson, Uniform Commercial Code, 2nd Ed., p. 306, the author makes this comment with reference to \u00a7 50A-4-402:\nDamages for Wrongful Dishonor. A payor bank is liable to its customer for the damages proximately caused by the wrongful dishonor of an item. The damages may include consequential damages (such as those sustained in connection with an arrest and prosecution), provided they are proximate damages. Whether the consequential damages are proximately related to the wrongful dishonor is a question of fact and not of law.\n\u201c \u2018Consequential damage\u2019 is defined in Black\u2019s Law Dictionary, Third Edition, as: \u2018Such damage, loss or injury as does not flow directly and immediately from the act of the party, but only from the consequences or results of such act.\u2019 \u201d Food Corporation v. Dawley, 202 Va. 543, 546, 118 S.E.2d 664, 667 (1961). \u201cConsequential damage\u201d includes injuries to credit as a result of wrongful dishonor. Loucks supra. It includes \u201c * * * any * * * consequential harm, loss or injury proximately caused by a wrongful dishonor. * * * \u201d A.F.N.B. v. Flick, 146 Ind.App. 122, 132, 252 N.E.2d 839, 845 (1969). See also, Skov v. Chase Manhattan Bank, 407 F.2d 1318 (3rd Cir. 1969); \u201cConsequential Damages\u201d, 8A Words and Phrases, p. 222. For dishonor due to mistake, see Bank of Louisville Royal v. Sims, 435 S.W.2d 57 (Ky.1968).\nAs a consequence of the dishonor (1) An attachment lien was filed against 54 items of personalty of the plaintiff in Mexico seizing all his personal assets for purposes of satisfying his debts owed to the Mexican bank. (2) Plaintiff was personally threatened with imprisonment if the checks were invalid. (3) His credit standing was ruined. (4) He was placed under a cloud of suspicion in his Mexican community. Plaintiff had an excellent professional reputation.\nPlaintiff is entitled to reasonable and temperate damages determined by the sound discretion and dispassionate judgment of the trial court. Loucks, supra.\nPlaintiff\u2019s judgment is affirmed. Plaintiff\u2019s cross-appeal is sustained. This cause is remanded to the trial court solely to determine the amount of consequential damages plaintiff is entitled to.\nIt is so ordered.\nLOPEZ, J., concurs.\nWOOD, J., dissents.", "type": "majority", "author": "SUTIN, Judge." }, { "text": "WOOD, Chief Judge\n(dissenting).\nI do not agree with the reasoning of the majority in deciding the statute of limitations issue. Nor do I agree with the result reached. I would reverse the trial court on the basis that the statute of limitations had run.\nA. Disagreement with the majority opinion.\nThe majority premise is that there is no difference between a draft, a cashier\u2019s check, a certificate of deposit or a certified check. Such a view is too broad because it fails to consider the issue requiring a comparison of those documents and fails to consider statutory provisions which deal with those documents. To say that each document is a negotiable instrument and that each document evidences a debtor-creditor relationship is no more than a beginning point.\nIn holding that the statute of limitations had not run in this case, the majority rely largely on decisions that do not involve the question of when the statute of limitations begins to run.\nThe majority do not make it clear whether their decision is based on the provisions of the UCC (Uniform Commercial Code). If the UCC is a basis for the majority opinion, the UCC is erroneously applied. Further, the UCC is not applicable to this case.\nFinally, the majority state a national bank \u201c. . . should not be allowed to avoid payment by use of a technical defense such as the statute of limitations.\u201d There is nothing in \u00a7 23-1-3, N.M.S.A. 1953 which makes that statute unavailable to the defendant. Statutes of limitations embody a legislative policy of forbidding stale claims. Burnett v. New York Cent. R. Co., 380 U.S. 424, 13 L.Ed.2d 941, 85 S.Ct. 1050 (1965). The Judges of this Court, under oath to uphold the law, have no authority to deny applicability of a statute to a national bank when the legislative enactment does not exclude the bank from its provisions.\nB. The limitation period had run under the UCC.\nThe limitation period involved is the six year period provided by \u00a7 23-1-1, supra. This period begins to run from the accrual of the causes stated in \u00a7 23-1-3, supra. See \u00a7 23-1-1, N.M.S.A. 1953.\nNo time for payment is stated in the five cashier\u2019s checks involved. They were payable on demand. Section 50A-3-108, N. M.S.A. 1953 (Repl. Vol. 8, pt. 1).\nA cashier\u2019s check is frequently defined in terms of a bill of exchange. A cashier\u2019s check has also been referred to as analagous to a negotiable note payable on demand. See State of Pa. v. Curtiss Nat. Bank of Miami Springs, Fla., 427 F.2d 395 (5th Cir. 1970); Walker v. Sellers, 201 Ala. 189, 77 So. 715 (1918); 2 Anderson, Uniform Commercial Code \u00a7 3-104:18 (2d Ed. 1971). Defendant issued the cashier\u2019s checks; thus, it is either an acceptor or maker of the cashier\u2019s checks.\nSection 50A-3-122, N.M.S.A. 1953 (Repl. Vol. 8, pt. 1) provides a cause of action against a maker or acceptor of a demand instrument accrues . . upon its date or, if no date is stated, on the date of issue.\u201d The date of issue was March 7, 1953; demand for payment was .in 1968. Under the UCC the limitation period of \u00a7 23-1-3, supra, had run.\n2 Anderson, supra, \u00a7 3-122:5(2) states: \u201cThe statute of limitations as to an action against a certifying bank or bank issuing a cashier\u2019s check runs from the date of the check, or if undated, from the date of issue, rather than from the making of a demand for payment.\u201d Under the UCC, special rules apply to certificates of deposit. See 2 Anderson, supra, \u00a7 3-122:5(3) and \u00a7 3-122:7; I Hawkland, A Transactional Guide to the Uniform Commercial Code \u00a7 2.050102 (1964).\nC. The UCC is not applicable.\nThe UCC was enacted in New Mexico in 1961 and became effective at the end of 1961. Laws 1961, ch. 96, \u00a7 10-101. Laws 1961, ch. 96, \u00a7 10-102(2) provides that transactions validly entered into before the effective date, \u201c * * * and the rights, duties and interests flowing from them remain valid thereafter and may be terminated, completed, consummated or enforced as * * * permitted by any statute * * * appealed by this Act as though such repeal * * * had not occurred.\u201d New Mexico\u2019s NIL (Negotiable Instruments Law) was repealed by Laws 1961, ch. 96, \u00a7 10-102(1). Thus, the applicable statute is the NIL, and not the UCC.\nD. The NIL.\nThe NIL does not expressly refer to cashier\u2019s checks. Sections 50-1-1 to 50 \u2014 5\u2014 7, N.M.S.A. (Orig. Vol. 8). The NIL does refer to bills of exchange (\u00a7 50-3-1, supra), and promissory notes (\u00a7 50-4 \u2014 1, supra). Certified checks are referred to in terms applicable to bills of exchange. See \u00a7\u00a7 50-4-4 and 50-4-5, supra. Section 50-1-17(V), supra states: \u201cWhere the instrument is so ambiguous that there is doubt whether it is a bill or note, the holder may treat it as either at his election. * * * \u201d\nSince a cashier\u2019s check has been defined as a bill of exchange, but also considered analogous to a promissory note, I would consider that plaintiff had an election under \u00a7 50-1-17 (V), supra. There being nothing indicating such an election, I consider the cashier\u2019s checks under both categories \u2014 as bills of exchange and as promissory notes.\nIn doing so, it should be kept in mind that the cashier\u2019s checks were also demand instruments under the NIL. Section 50-1-7, supra. It should also be kept in mind that defendant was primarily liable on the cashier\u2019s checks it issued. Perry v. West, 110 N.H. 351, 266 A.2d 849 (1970); 2 Anderson, supra, \u00a7 3-104:18.\nIn Dean v. Iowa-Des Moines Nat. Bank & Trust Co., 227 Iowa 1239, 281 N.W. 714 (1938) modified on other grounds, 227 Iowa 1239, 290 N.W. 664 (1940), a cashier\u2019s check was treated as a bill of exchange. Dean held that defendant was primarily liable; that the liability was created \u201cfrom and after issuance;\u201d that at all times after issuance there was a duty to pay. \u201cSo far as the statute of limitations is concerned a cause of action had accrued.\u201d Atlantic Nat. Bank of West Palm Beach v. Havens, 45 So.2d 342 (Fla.1950), holds that the statute of limitations on cashier\u2019s checks begins to run on the date of issue. Under these decisions, a cause of action on cashier\u2019s checks treated as bills of exchange accrued when the checks were issued in 1953.\nSchoonover v. Caudill, 65 N.M. 335, 337 P.2d 402 (1959) states:\n\u201c. . . the statute of limitations begins to run against the ordinary demand note from the date of its execution, rather than from the time of demand . . . .\u201d\nUnder Schoonover, if treated as promissory notes, a cause of action accrued on the cashier\u2019s checks when issued in 1953.\nUnder either theory permitted by \u00a7 50-1-17(V), supra, the statute of limitations had run.\n2 Anderson, supra, \u00a7 3-122:1, refers to the \u201cOfficial Code Comment\u201d concerning what is our \u00a7 50A-3-122, supra. This comment is that the statutory provision for accrual of causes of action is new. This new provision, however, \u201c * * * follows the generally accepted rule that actions may be brought on a demand note immediately upon issue, without demand, since presentment is not required to charge the maker under the original Act [the NIL] or under this Article. * * * \u201d\nHawkland, supra, states:\n\u201cSince presentment is not necessary to charge persons who are primarily liable on negotiable instruments, the statute of limitations starts to run in favor of the maker of a promissory note and the acceptor of a draft or check the moment these instruments mature. In the case of a demand instrument, the statute of limitations starts to run at the moment the paper is issued, because no demand for payment is needed to charge primary parties.\n\u201cThese basic rules have been continued by \u00a7 50A-3-122, supra. [My emphasis].\nThe above texts are to the effect that the UCC provisions for accrual of causes of action are, generally speaking, no more than a continuation of basic or general rules applicable under the NIL.\nOn the basis of the above cited cases and texts, I would hold the statute of limitations began to run on the cashier\u2019s checks on the date of issue.\nE. Cashier\u2019s checks as certificates of deposit.\nI have previously pointed out that a special rule applies to certificates of deposit under the UCC. New Mexico adopted a special rule for certificates of deposit in 1901. Bank of Commerce v. Harrison, 11 N.M. 50, 66 P. 460 (1901) held the statute of limitations does not begin to run on a certificate of deposit until there has been a presentment and demand for payment. See also Luna v. Montoya, 25 N.M. 430, 184 P. 533 (1919).\nPlaintiff would apply the rule for a certificate of deposit to a cashier\u2019s check. This contention is based on the similarity of the instruments. A cashier\u2019s check is similar to a promissory note; a certificate of deposit is similar to a promissory note; thus, a cashier\u2019s check and a certificate of deposit are similar. See 2 Anderson, supra, \u00a7\u00a7 3-104:18 and 3-104:25.\nMy answer to this contention is: (1) Bank of Commerce v. Harrison, supra, adopted the special rule for certificates of deposit on the basis that the certificates were similar to deposits of money. Harrison, supra, did not involve and did not consider, cashier\u2019s checks. (2) A special rule is applied to certificates of deposit because they are \u201c * * * regarded by most depositors as a mere receipt or a savings-account passbook. * * * \u201d Hawkland, supra. (3) The record in this case does not establish that cashier\u2019s checks are considered similar to deposits; plaintiff did not so testify and there is no evidence as to customary usage as to cashier\u2019s checks. 2 Anderson, supra, \u00a7 3-104:18 states cashier\u2019s checks are \u201c * * * frequently taken out by parties who desire to have the money represented by the check in that form rather than to carry cash. * * * \u201d Further, the bank\u2019s obligation \u201c * * * is like that of the maker of a demand promissory note.\u201d 2 Anderson, supra, \u00a7 3-104:18. Thus, there is no basis for \u25a0 equating the purpose of a cashier\u2019s check with the purpose of a certificate of deposit.\nOn the basis of the foregoing, I dissent.", "type": "dissent", "author": "WOOD, Chief Judge" } ], "attorneys": [ "Robert M. St. John, Rex D. Throckmorton, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for appellant.", "Dale Walker, Peter Gallagher, Gallagher & Walker, Albuquerque for appellee." ], "corrections": "", "head_matter": "511 P.2d 769\nDonald K. ALLISON, Plaintiff-Appellee, Cross-Appellant, v. FIRST NATIONAL BANK IN ALBUQUERQUE, Defendant-Appellant, Cross-Appellee.\nNo. 1110.\nCourt of Appeals of New Mexico.\nJune 6, 1973.\nCertiorari Granted July 9, 1973.\nRobert M. St. John, Rex D. Throckmorton, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for appellant.\nDale Walker, Peter Gallagher, Gallagher & Walker, Albuquerque for appellee." }, "file_name": "0283-01", "first_page_order": 345, "last_page_order": 353 }