City Nat. Bank & Trust Co. of Chicago v. Dunham

• Decision Date: 10 September 1940
• Docket Number: Gen. No. 41021.
• Citation: 306 Ill.App. 354,28 N.E.2d 812
• Court: United States Appellate Court of Illinois
• Parties: CITY NAT. BANK & TRUST CO. OF CHICAGO v. DUNHAM ET AL. DUNHAM v. CITY NAT. BANK & TRUST CO. OF CHICAGO ET AL.

306 Ill.App. 354

28 N.E.2d 812

CITY NAT. BANK & TRUST CO. OF CHICAGO

v.DUNHAM ET AL.

DUNHAM

v.CITY NAT. BANK & TRUST CO. OF CHICAGO ET AL.

Gen. No. 41021.

Appellate Court of Illinois, First District, Third Division.

June 19, 1940.

Rehearing Denied Sept. 10, 1940.

Appeal from Circuit Court, Cook County; Cornelius J. Harrington, Judge.

Suit of interpleader by the City National Bank & Trust Company of Chicago against James Dunham, individually and as executor of the last will and testament of Frances Brundage, deceased, and others, for determination of rights to money deposited in savings account. From an adverse decree, the named defendant and others appeal.

Reversed and remanded with directions.

BURKE, J., dissenting. Prescott, Burroughs & Taylor and Horace E. Galloway, all of Chicago, for appellants.

Wendell E. Green and Henry C. Ferguson, both of Chicago, for appellees.

DENIS E. SULLIVAN, Presiding Justice.

From a decree entered on June 30, 1939, in the Circuit Court in a suit of interpleader, James Dunham, individually and as Executor of the Last Will and Testament of Frances Brundage, Deceased, Ophelia Abrams, Anthony Cummings and Leroy Cummings, bring this appeal.

The so-called bill of interpleader was filed by the plaintiff City National Bank and Trust Company of Chicago. In that bill it is alleged that on or about June 4, 1919, there was opened with the National City Bank and Trust Company of Chicago, predecessor of plaintiff, a savings account in the name of Frances Brundage; that on or about October 6, 1932, plaintiff assumed the debt which had arisen by virtue of the deposits to said savings account; that the amount of said debt and all accrued interest thereon amounted to $1,439.63, and that said savings account is now evidenced by a pass-book issued by plaintiff and numbered 31955, and that James Dunham has possession of said pass-book.

Said complaint further alleges that on or about the time said savings account was opened there was delivered to said National City Bank of Chicago a signature card or record bearing the purported signature of a Frances Brundage; that when plaintiff assumed said debt as aforesaid, it received said signature card or record and now has possession thereof; that plaintiff has no other signature card or record.

Said complaint further alleges that it is and has been for many years a general custom in Chicago, Illinois, for banks to identify each of their depositors by his signature, entered upon a signature card retained by the bank, and to permit a withdrawal from a savings account only upon a withdrawal order or receipt bearing a signature written by the person who signed the signature card appertaining to the particular account; that such correspondence of signatures is also required by plaintiff's Rules and Conditions for Savings Deposits, to which every depositor has consented and by which he is bound; that paragraph 6 of such Rules and Conditions provides in part that “withdrawals of deposits and interest shall be made only upon presentation of the pass-book accompanied by a withdrawal receipt or written order signed by the depositor as entered upon and in conformity with the signature cards of the Bank; * * *”.

Said complaint further alleged that during her lifetime, in the early part of 1938, the said Frances Brundage presented to plaintiff a withdrawal order or receipt bearing her true and genuine signature; that plaintiff ascertained that the signature “Frances Brundage” on said signature card or record was written by a different person from the Frances Brundage who signed said withdrawal order or receipt; that by virtue of said custom and said Rules and Conditions, plaintiff declined to allow said Frances Brundage to make any withdrawal from said savings account unless and until she could establish satisfactorily that the money deposited to said account was her property and that no other person had any right, title or interest in said savings account. These last two allegations are contradictory but tend to show that plaintiff was inequitably holding the money after Frances Brundage had complied with the terms of deposit.

Said complaint further alleges that said Frances Brundage during her lifetime informed plaintiff that the name Frances Brundage was written on said signature card or record by her daughter, whose name at the time she signed the signature card was Bettie White; that plaintiff has since been informed that Bettie White was the same person as Bettie Wimms who died on or about November 25, 1935, as aforesaid.

Said complaint further alleges that on or about March 14, 1938, said Frances Brundage brought an action against said City National Bank and Trust Company of Chicago in the Municipal Court of Chicago, in case No. 2781133, entitled, “Frances Brundage, Plaintiff v. City National Bank and Trust Company, a corporation, Defendant”, to collect said debt which had arisen by virtue of said savings account; that after the death of said Frances Brundage on or about June 8, 1938, her death was suggested to the Court and the executor of her will, said James Dunham, was substituted as party plaintiff in said case No. 2781133; that said case is still pending in the Municipal Court of Chicago.

The prayer contained in said complaint is that a guardian ad litem may be appointed for the infant defendant, said Mary Frances Wimms Price; that defendants may severally set forth to which of them the said indebtedness in the amount of $1,439.63 by reason of said savings account does of right belong and is payable and how in particular they make out their claim thereto; that the defendants may interplead and settle and adjust their said demands between or among themselves, the plaintiff being willing and desirous and agreeing that said indebtedness may be paid to such one or more of them to whom the same shall, in the judgment of this court, appear of right to belong; that plaintiff may be allowed its costs in this proceeding; that plaintiff may be at liberty to bring and pay the said sum of $1,439.63, less its costs aforesaid, into court in full payment and discharge of said indebtedness, as the court shall direct, which plaintiff hereby offers to do, for the benefit of such of the defendants as shall appear to be entitled thereto, and subject to the further order of the court; that the defendant James Dunham, individually and as executor of the will of Frances Brundage, deceased, and his agents and attorneys, may be restrained, both temporarily and permanently, by the injunction of this court, from proceeding against said City National Bank and Trust Company of Chicago in said action pending in the Municipal Court of Chicago on account of said indebtedness; that said James Dunham may be directed and ordered to dismiss said case No. 2781133 in said Municipal Court; that all of the defendants may be restrained and enjoined, both temporarily and permanently, from commencing any action or actions of any kind against said City National Bank and Trust Company of Chicago for the recovery of said indebtedness, or any part thereof, or touching any matters or things aforesaid; that the said James Dunham, individually and as executor of said will, may be decreed to deliver and surrender the pass-book evidencing said savings account and said indebtedness to the plaintiff for cancellation; and that the plaintiff may have such other and further relief in the premises as equity may require and to the court shall seem meet.

The decree entered in this case found in favor of the plaintiff bank and said decree is much broader in its terms than is justified by the pleadings, the evidence or the law.

It will be noted in this claim filed that no allegation is made that any one has made a demand, other than one person, to-wit, Frances Brundage, and that said demand was made by a suit being commenced in the Municipal Court.

In Partlow v. Moore, 184 Ill. 119, at page 121, 56 N.E. 317, at page 318, the court said: “As a general rule, a bill of interpleader lies where two or more persons claim the same fund or property by different, adverse interests, and the custodian, who is indifferent between them, does not know to whom the fund or property of right belongs. Newhall v. Kastens, 70 Ill. 156;Cogswell v. Armstrong, 77 Ill. 139;Ryan v. Lamson, 153 Ill. 520, 39 N.E. 979. Here there was no adverse claim interposed to the money in the hands of the master, and upon that ground alone the...