Cowen v. Valley Nat. Bank, 5021
Citation | 67 Ariz. 210,193 P.2d 918 |
Decision Date | 24 May 1948 |
Docket Number | 5021 |
Parties | COWEN v. VALLEY NAT. BANK |
Court | Arizona Supreme Court |
Appeal from Superior Court, Maricopa County; Walter J. Thalheimer Judge.
Affirmed.
W. H Chester, of Phoenix, for appellant.
Gust Rosenfeld, Divelbess, Robinette & Linton, of Phoenix, for appellee.
OPINION
On August 31, 1946, plaintiff (appellant) had a joint checking account with Dorothy Cowen, his wife, in the defendant bank (appellee), and on said date plaintiff drew out of said account by check the sum of $ 100 cash. He then went to the savings department of said bank and opened a savings account under his separate name in the sum of $ 500, giving the bank a check drawn on the joint account of himself and his wife. To evidence the $ 500 deposited in the savings account opened by the plaintiff, the defendant issued a pass book showing the amount deposited and accepted the check presented for that amount.
August 31, 1946, was on a Saturday; September 1st was Sunday; and September 2nd was Labor Day (both legal holidays). Accordingly the bank was not open for business until September 3rd, on which date, at the time of the opening of the bank, plaintiff's wife went to the bank and withdrew from the same joint checking account of husband and wife the balance that the bank record erroneously showed to be in the joint account, namely the sum of approximately $ 689; that at the time the wife of plaintiff appeared on September 3rd and withdrew the total sum in said account, the $ 500 check, which had been drawn by the plaintiff on August 31st against the joint account, had not been charged against said joint account. When defendant discovered what it termed a "double withdrawal" of the sum of $ 500 from the joint checking account of plaintiff and his wife it cancelled the deposit of $ 500 by the plaintiff in the savings account claiming the account was overdrawn, and advised plaintiff of its action.
The record shows that there were marital difficulties between plaintiff and his wife at the time the checks in question were drawn though the Bank had no knowledge thereof. Divorce action was filed on September 16, 1946, by the wife against plaintiff, and in the complaint filed the wife disclosed that the $ 500 here in question was in her possession, and on September 26, 1946, plaintiff and his wife entered into a property settlement agreement by which it was agreed that the moneys then in her possession were to be retained by her.
The case was tried before a jury. After submission of all evidence the defendant moved for an instructed verdict on the following two grounds:
The court granted an instructed verdict on the second ground. Thereafter, motion for new trial was made and denied, and from the trial court's action in that respect appeal has been brought to this court.
By plaintiff's following assignments of error we can cover the contentions presented:
The defendant, excepting to the court's ruling denying the motion for an instructed verdict on the first ground, filed its cross-assignment of error as follows: "The trial court erred in not granting defendant's motion for an instructed verdict upon the record evidence in the case, and the admissions of the plaintiff that he had knowledge of facts to charge him with notice of the fact that the $ 500.00 had been drawn out of the account by his wife when he made the property settlement agreement, and that having such knowledge, the effect of that property...
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