Forbes v. First Camden Nat. Bank & Trust Co.

• Decision Date: 26 February 1953
• Docket Number: No. A--67,A--67
• Citation: 95 A.2d 416,25 N.J.Super. 17
• Parties: FORBES v. FIRST CAMDEN NAT. BANK & TRUST CO.
• Court: New Jersey Superior Court — Appellate Division

Page 17

25 N.J.Super. 17

95 A.2d 416

FORBES v. FIRST CAMDEN NAT. BANK & TRUST CO.

No. A--67.

Superior Court of New Jersey, Appellate Division.

Argued Jan. 19, 1953.

Decided Feb. 26, 1953.

F. Morse Archer, Jr., Camden, for appellant (Boyle, Archer & Greiner, Camden, attorneys).

Joseph Tomaselli, Camden, for respondent (Malandra & Tomaselli, Camden, attorneys).

Before Judges EASTWOOD, BIGELOW and JAYNE.

The opinion of the court was delivered by

BIGELOW, J.A.D.

The plaintiff and her husband had a savings account in the defendant bank. The signature card shows:

'We hereby agree to the rules and regulations of First Camden National Bank and Trust Company.

'This account and all money to be credited to it belong to us as joint tenants, and will be the absolute property of the survivor of us; either, and the survivor to draw.'

Among the rules printed in the passbook was,

'Withdrawal of all or any part of a Savings deposit may be made upon presentation of the pass book and the signing of a withdrawal receipt.'

Below the rules was printed in boldface:

Important Notice

'No payments will be made unless the check or order thereof is accompanied by the passbook of the withdrawing depositor.'

Between December 23, 1946 and September 18, 1947 plaintiff's husband withdrew from the account $1,600 without presenting the passbook. On November 7, 1947 the plaintiff appeared at the bank with the passbook and had entered therein the several payments that had been made to her husband. She then drew out the balance remaining, $400, besides a little interest.

Four years later, October 24, 1951, plaintiff began her action against the bank, alleging the foregoing facts, and also that the passbook had always been in her possession. She obtained judgment for $1,600, the amount of her co-depositor's withdrawals.

She does not allege that she owned any part of the money that was paid to her husband. But as between joint owners of a savings account, there is a presumption that each owns a half interest therein. Steinmetz v. Steinmetz, 130 N.J.Eq. 176, 21 A.2d 743 (Ch.1941); Stout v. Sutphen, 132 N.J.Eq. 583, 29 A.2d 724 (Ch.1943). On that basis, plaintiff owned $1,000 of the deposit, received $400, and would be entitled to judgment against her husband for $600, with an interest adjustment. But there seems no plausible argument to support a recovery by plaintiff in a larger sum, even against her husband.

Let us consider whether the plaintiff was entitled to any judgment at all against the bank.

The relation between a depositor and a bank is one of creditor and debtor, and their rights and liabilities depend upon the contract between them. The signature card contains the primary terms of the agreement, but rules printed in the passbook are a part of the contract. Schippers v. Kempkes, 67 A. 1042 (Ch.1907), affirmed 72 N.J.Eq. 948, 73 A. 1118 (E. & A.1907); Cosgrove v. Provident Institution for Savings, 64 N.J.L. 653, 46 A. 617 (E. & A.1900). Other statements in the passbook, which reasonable persons would consider binding, also enter into the contract. The defendant bank argues that the 'Important Notice' is not part of the contract; that it was a warning,--Don't expect the bank to make any payments except on presentation of the passbook. It seems to us more than that, and to constitute part of the agreement. The bank also stresses the particular words used in the rule we have quoted and in the notice,--'withdrawl receipt,' 'check or order.' We do not, however, consider the choice of these words to be significant. The rights of the parties ought not depend on fine shades of meaning. Savings accounts are owned by thousands of our fellow citizens, each of whom has signed a card much like this one, without close study of the words printed on the card itself or in the rules. The instruments before us were drafted by the bank and in case of ambiguity should be construed most strongly against it. Moses v. Edward H. Ellis, Inc., 4 N.J. 315, 72 A.2d 856 (1950); McAllister v. Century Indemnity Co., 24 N.J.Super. 289, 94 A.2d 345 (App.Div.1953). We take the contract to mean that the bank will pay upon presentation of the passbook and will not pay if the book is not presented. This construction harmonizes with the common understanding of the owners of savings accounts and with our decisions relative to gifts of savings accounts. Borthwick v. Skurzynski, 139 N.J.Eq. 520, 52 A.2d 443 (Ch.1947), affirmed 141 N.J.Eq. 363, 57 A.2d 216 (E. & A.1948).

The bank also urges that, even if the contract has the meaning we have indicated, the stipulation that the bank would not pay if the book were not presented, was inserted for the sole benefit of the bank and could be effectively waived by the bank. Brooks v. Erie County Savings Bank, 169 App.Div. 73, 154 N.Y.S. 692 (1915), affirmed 224 N.Y. 639, 121 N.E. 857 (Ct.App.1918). Contra are Mercantile Sav. Bank v. Appler, 151 Md. 571, 135 A. 373 (Ct.App.1926) and Davis v. Chittenden Co. Trust Co., 115 Vt. 349, 61 A.2d 553 (Sup.Ct.1948). Unless the stipulation was clearly intended by the parties to benefit one side only, both parties should be considered to have an interest in its fulfilment. By virtue of this agreement a depositor might rest assured that if he was careful not to lose the passbook, his money in the account was safe. The provision could not be waived by the unilateral action of the bank.

The bank further urges that a waiver by the bank and one of two joint depositors is effective. There can be little or no doubt but as between the debtor bank and Mr. and Mrs. Forbes as creditors, the latter were joint obligees. Their right against the bank was joint and not several. See Williston, Contracts, § 325. The bank did not owe $1,000 to Mr. Forbes and $1,000 to his wife; it owed $2,000 to the two of them. 'This account and all money to be credited to it belong to us as joint tenants.' Now, it is the general rule that each of several joint obligees has power to discharge the entire claim by release, or accord and satisfaction, or the acceptance of payment or other performance. Thus in Ely v. Ely, 70 N.J.L. 31, 56 A. 246 (Sup.Ct.1903), one joint...