Abraham v. National City Bank Corp.
| Decision Date | 18 April 1990 |
| Docket Number | No. 89-237,89-237 |
| Citation | 50 Ohio St.3d 175,553 N.E.2d 619 |
| Parties | ABRAHAM, Appellant, v. NATIONAL CITY BANK CORPORATION, F.K.A. Capital National Bank, Appellee. |
| Court | Ohio Supreme Court |
I do not believe that R.C. 1101.08(F) acts as a time bar here, since this case is neither solely "based on" records which need be retained for only six years, nor does its determination "depend upon" such records.
It has been held that "the relationship between a bank and a general depositor is that of debtor and creditor." Speroff v. First-Central Trust Co. (1948), 149 Ohio St. 415, 37 O.O. 98, 79 N.E.2d 119, paragraph one of the syllabus. As was stated in People v. Jenkins (1978), 61 App.Div.2d 705, 708, 403 N.Y.S.2d 751, 753: "A depositor is a creditor of the bank and the passbook issued to the depositor is evidence of the debt and the contract between them ( Myers v. Albany Sav. Bank, 270 App.Div. 466 , affd. 296 N.Y. 562 ) * * *."
"The term 'deposit,' when used in connection with a banking transaction, denotes a contractual relationship ensuing from the delivery, by one known as the 'depositor,' of moneys, funds, or things into the possession of the bank, which receives the same upon the agreement to pay, repay, or return, upon the order or demand of the depositor, the moneys, funds, or equivalent amount, of things received * * *." 10 American Jurisprudence 2d (1963) 299, Banks, Section 337. The remedy of a general depositor may sound in contract on the theory that the bank receives the deposit upon an agreement to repay it on demand or order. Id. at Section 449.
R.C. 1101.08(F) is limited to actions which are "based on, or the determination of which would depend upon, the contents of records for which a period of retention or preservation is set forth in divisions (A) and (B) of this section. * * * " (Emphasis added.) Here appellant put forth sufficient evidence which supported her assertion that she did not close her account and that appellee breached its contract by refusing to repay her deposited funds on demand. Her action is thus not solely based on or dependent upon records which the bank may have destroyed in reliance on R.C. 1101.08(F).
The record discloses no affirmative evidence that appellant's account had been closed. Appellee can only infer that the account had been closed because appellant's account number did not appear on a January 4, 1977 list of open accounts. Appellant's passbook, on the other hand, evidences that the account has not been closed and there has been no activity in the account since September 30, 1972.
Appellant also points out that her passbook contains the statement, "This book must be presented when money is deposited or withdrawn. * * * " It has been held that "[t]he reasonable rules and regulations adopted by a savings bank and printed in its pass book, signed and agreed to by a depositor, form a contract between the bank and the depositor, and each is bound thereby unless such rules and regulations are contrary to some positive rule of law or are against public policy." Fourth & Central Trust Co. v. Rowe (1930), 122 Ohio St. 1, 170 N.E. 439, at paragraph two of the syllabus. However, it also must be noted that Rule 9 of the bank's Rules and Regulations Governing Royal Passbook Accounts states: " * * * For Bank's protection, no person shall have the right to make a withdrawal without presenting the Passbook and giving a receipt, if requested, for the amount withdrawn but Bank, in its absolute discretion, may permit a withdrawal by depositor without presentment of the Passbook. * * * " According to the deposition of bank official, John Szucs, it appears that withdrawals without a passbook were not "normal bank practice," and would be allowed only upon insistence of customers who, for various reasons, did not have their passbooks with them, or upon court order.
Appellant testified that her passbook had been misplaced from 1972 to 1985, and she had not withdrawn funds from it during that time. She also stated that no one else had authority to withdraw funds from this account or even knew about the account.
Although I agree that banking institutions need some limit on record retention, I cannot agree with the majority that R.C. 1101.08(F) bars all actions against a bank involving destroyed records after a mere six years. Appellee can only guess as to why appellant's account did not appear on its January 4, 1977 list of open accounts. While evidence such as this list may tend to support appellee's contention that appellant's account was closed prior to January 1977, I do not believe that this evidence alone is sufficient to completely bar appellant's claim.
Appellee admitted that it was possible that appellant's account may have been mistakenly debited without appellant being aware of such an...
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