Davis v. Chittenden County Trust Co.

• Decision Date: 05 October 1948
• Docket Number: No. 1750.,1750.
• Citation: 61 A.2d 553
• Court: Vermont Supreme Court
• Parties: DAVIS v. CHITTENDEN COUNTY TRUST CO.

61 A.2d 553

DAVIS

v.CHITTENDEN COUNTY TRUST CO.

No. 1750.

Supreme Court of Vermont.

Oct. 5, 1948.

Exceptions from Washington County Court; Blackmer, Presiding Judge.

Action in general assumpsit by Marjorie L. Davis against Chittenden County Trust Company to recover for alleged wrongful payment of balance of a joint savings account. Judgment for plaintiff, and defendant brings exceptions.

Affirmed.

Hunt & Hunt, of Montpelier, for plaintiff.

J. H. Macomber and A. Pearley Feen, both of Burlington, for defendant.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

BUTTLES, Justice.

By this action in general assumpsit the plaintiff, a co-owner of a joint savings account in defendant bank, seeks to recover for the alleged wrongful payment of the balance thereof to the other co-owner without presentation of the bank pass book or proof of its loss or destruction as required by the rules of the bank. As no answer was filed general denial is considered pleaded. P. L. 1574. Trial was by the court, judgment was for the plaintiff and the defendant comes to this court on bill of exceptions.

The findings of the court, not excepted to, disclose the following facts. The joint owners of the account were husband and wife. The husband, Clayton E. Davis, made some small deposits therein of his own money but the bulk of the account came from the avails of the sale of a house title to which was held by the husband and wife by the entireties, although the money for its purchase had been furnished by the husband. The bank pass book was in the exclusive possession of the husband until October 14, 1946, when the avails from the sale of the house were deposited. At that time the husband made two withdrawals, one of which was for the purchase of bonds for their children, leaving a balance of $2000 in the account. Mr. Davis and the plaintiff had had domestic difficulties and he contemplated going away for an indefinite period. Before leaving the bank on that occasion he handed the pass book for the account to the plaintiff, telling her that as she had nothing on which to support the children and herself she was to use the money in that savings account unless she received money from him.

Printed in this pass book were certain rules of the defendant governing savings accounts, among which were the following:

‘Article 4. A depositor, desiring to withdraw money from his deposit, shall present his bank book in order that the payment may be entered thereon, unless satisfactory proof is furnished that such book has been lost or destroyed.

‘Immediate notice of the loss of a deposit book should be given the Bank, and the Bank will not be responsible for loss sustained by any depositor, when he has not given notice of the loss of his book, if his deposit should be paid, in full or in part, on presentation of the book by any other person. In all cases, a payment upon presentation of the deposit book shall be a discharge to the Bank for the amount paid.’

On the cover of this pass book is printed, ‘This account not subject to check’, and on the inside of the back cover is printed, ‘This bank book must accompany all withdrawal orders.’ The plaintiff has had the sole and exclusive possession of the pass book since October 14, 1946.

On November 6, 1946, the plaintiff withdrew $1000 from the account upon presentation of the pass book. At that time she talked with Mason W. Huse, the defendant's assistant treasurer and loaning officer, whose duties with reference to savings accounts are secondary. He was acquainted with the plaintiff's domestic and financial condition. She told him that no further withdrawals should be made from that account without the pass book, and he assured her that money could not be withdrawn without the pass book and instructed the clerks not to permit withdrawals from this account unless the pass book was presented. Which clerks he so instructed does not appear. Plaintiff then believed because of Mr. Huse's statement and action, that no money could be withdrawn without the pass book but she expressed no wish to change the status of the account and gave no directions in that respect. She permitted it to remain a joint account until she closed it on January 28, 1947. The defendant on some occasions made an exception to its rule requiring presentation of the pass book when a withdrawal was made from a savings account, but it does not appear that the plaintiff knew or ought to have known that such exceptions were made.

On December 9, 1946, Mr. Davis, without having the pass book or an order signed by the plaintiff in his possession, withdrew $500 from the account. The teller who waited upon him was well acquainted with him and he gave her some reason which satisfied her for not presenting the passbook. She did not consult any officer of the bank about permitting this withdrawal, but took it upon herself to make an exception to the rule.

The plaintiff knew nothing of this withdrawal, except a statement by Mr. Davis which she did not believe, until January 28, 1947, when she presented the pass book at the bank for the purpose of withdrawing $1000 and interest which she thought was the balance remaining in the account. She was then informed of the withdrawal of $500 by Mr. Davis and that withdrawal was entered in the pass book. She was then paid $501.67, the balance of the account as shown by the bank's record, for which amount she signed a withdrawal slip although protesting that this was not the correct amount. It is for the balance of the account as the plaintiff claims it should be that she has brought this action.

We have before us for consideration only the defendant's exception to the judgment. While the bill of exceptions recites that the defendant was allowed exceptions to the failure of the court to find as requested and to the failure to amend the findings as requested, such requested findings and amendments showing what the exceptions were and the grounds thereof have never been filed. The bare statement in the bill of exceptions that the exceptions were allowed, without more, presents nothing for review. Platt, Adm'r, v. Shields and Conant, 96 Vt. 257, 266, 119 A. 520; Little v. Loud, 112 Vt. 299, 302, 23 A.2d 628; Cook v. Holden, 113 Vt. 409, 411, 35 A.2d 353. The bill of exceptions also refers to ‘numerous exceptions' to the admission and exclusion of evidence, but the record does not disclose what exceptions are referred to and no such exceptions are briefed. They are therefore waived. Bennett v. Delphia, 98 Vt. 492, 493, 129 A. 234; White River Chair Co. v. Connecticut River Power Co., 105 Vt. 24, 35, 162...