Clabbey v. First Nat. Bank, 22880

• Decision Date: 02 February 1959
• Docket Number: No. 22880,22880
• Citation: 320 S.W.2d 738
• Parties: Thomas R. CLABBEY, Individually, and Thomas R. Clabbey, Executor of the Estate of Alice M. Clabbey, Deceased, Appellant, v. FIRST NATIONAL BANK, a Corporation, Respondent.
• Court: Missouri Court of Appeals

Page 738

320 S.W.2d 738

Thomas R. CLABBEY, Individually, and Thomas R. Clabbey Executor of the Estate of Alice M. Clabbey Deceased, Appellant, v. FIRST NATIONAL BANK, a Corporation, Respondent.

No. 22880.

Kansas City Court of Appeals, Missouri.

Feb. 2, 1959.

John M. Belisle, Morran D. Harris, Osceola, for appellant.

Everett E. Teel, Nevada, Watson & Tudor, Joplin, for respondent.

HUNTER, Judge.

This is an appeal from a judgment in favor of defendant-respondent, First National Bank of Nevada, Missouri, in a suit for $2,940 filed by plaintiff-appellant, Thomas R. Clabbey, as an individual, and Thomas R. Clabbey, as executor of the estate of his deceased mother, Alice M. Clabbey. Plaintiff is the sole heir of Alice M. Clabbey. Plaintiff's suit was for damages for alleged breach of contract by defendant bank in connection with a bank account in the names of Alice M. Clabbey and plaintiff.

In January, 1952, plaintiff and his mother were residing at different addresses in Eldorado Springs, Missouri. On January 10, 1952, Alice M. Clabbey made up a package consisting of $2,940 in currency and in the presence of her son, Thomas, had his wife write the following letter to Mr. J. R. Rhinehart, an officer of defendant bank:

'Eldorado Spgs Mo.

'Jan 10, 1952

'Mr. J. R. Rhinehart,

'Nevada, Mo.

'Dear Sir:--No doubt you have forgotten me is why I am using this letter.

'I fell down a flight of stairs in a basement on concrete floor and it has left me in awful bad shape.

'I am sending over $2940.00, I am so nervous I can't write plain so I want the account in my name and my son Thomas R. we will both have our signatures on the checks.

'/s/ Alice M. Clabbey

'112 W. Broadway

'Thos. R. Clabbey

'504 So. Kirkpatrick Dr.'

The $2,940 was in the mother's possession in her apartment at the time she made up the package for delivery to defendant bank and none of it belonged to plaintiff.

The package and accompanying letter signed by Alice M. Clabbey and plaintiff were delivered by plaintiff to the mail carrier and on that same day delivered to the bank. The deposit slip made up by some one at defendant bank reads: 'Alice M. Clabbey or Thos. R. Clabbey' with the notation on it 'Checks to be signed by both parties.' '2,940.00'

The bank ledger sheet shows the name:

'Alice M. Clabbey

112 W. Broadway, ElDorado Spgs., Mo.

or Thos. R. Clabbey

504 S. Kirkpatrick St., El Dorado Spgs.'

There also appeared the accompanying notation 'Both signatures on each check.' At some time the word 'and' was written over the word 'or'. This ledger sheet was used for all deposits.

On February 25, 1952, and before any withdrawals or additional deposits were made, Alice M. Clabbey sent a letter to the bank as follows:

'Will you please change the checking act I have jointley with my son and daughter in Law, Thomas and Beatrice Clabbey, to my personal act with my signature only as with right to check on act.

'/s/ Alice M. Clabbey'

Thereafter various substantial deposits were made in the name of Alice M. Clabbey only.

Plaintiff never joined with his mother in writing checks or drawing on the account. Nor did he endeavor to withdraw any money in his own name. He did receive a check from his mother for $1,000 in April, 1952, drawn on defendant bank and signed by his mother. He cashed this check and used the proceeds for the purchase of an automobile. Plaintiff testified he had no knowledge that this money came out of the account in question but supposed she had another account in defendant bank although he knew of no such account. He made no inquiry of the bank with reference to any of the money on deposit in the account until after his mother's death on September 18, 1955.

On May 9, 1952, Alice M. Clabbey withdrew from the account in question $8,800 and thereafter made various other withdrawals and on August 8, 1952, withdrew the remaining amount and closed the account. On September 21, 1955, plaintiff made demand for the money deposited in the account and his demand was refused by defendant bank. This suit followed. In it plaintiff contends he is entitled to judgment for $2,940--one half in his individual capacity and one half as executor of the estate of his mother.

On a change of venue, the case was tried before Special Judge Walter E. Bailey without a jury. Thereafter because of Judge Bailey's illness a transcript of the proceedings and briefs of counsel were submitted to Judge Woodson Oldham, Special Judge, for determination. Judge Oldham made his findings of fact and conclusions of law and rendered judgment against plaintiff. Thereafter, plaintiff perfected his appeal.

This being a jury waived case, our duty is to review it upon both the law and the evidence as in suits of an equitable nature. Parks v. Thompson, 365 Mo. 700, 285 S.W.2d 687.

Plaintiff's position on this appeal essentially is that the evidence reveals the establishment of a joint account in the names of plaintiff and his mother requiring their joint signatures on any check and thereby establishing a donative intent on the part of deceased, resulting in either a gift or a trust and that neither his mother nor defendant bank without his consent could change the nature of the account so as to permit her alone to withdraw any funds therefrom.

Respondent's position is that the relationship created by the original bank deposit and the letter accompanying it constituted a debtor-creditor relationship between defendant bank and Alice M. Clabbey, an individual, with her son as a cosigner merely as a matter of convenience by reason of her disability and with her retaining the right to change the account at any time so as to require her signature only on a check. Respondent denies there was any intent on the part of plaintiff's mother to vest any interest in the bank account in plaintiff.

At the outset in his brief plaintiff concedes the correctness of the circuit court judgment in so far as all deposits subsequently to the $2,940 deposit are concerned. He acknowledges that his mother made these later deposits in her name only and that they became her personal account in which he had no interest.

It is not uncommon for bank accounts to be established in the name of two or more persons. The rights and duties as between the bank and those in whose name the deposit is made ordinarily are governed by the contract, express or implied, that results in the course of the establishment of the...