Frigon v. Enfield Sav. and Loan Ass'n

Decision Date22 January 1985
Docket NumberNo. 12266,12266
Citation195 Conn. 82,486 A.2d 630
PartiesHarry FRIGON v. ENFIELD SAVINGS AND LOAN ASSOCIATION.
CourtConnecticut Supreme Court

Bruce D. Tyler, Somers, for appellant (plaintiff).

Arnold Sbarge, Hartford, with whom, on the brief, was David M. Roth, West Hartford, for appellee (defendant).

Before PETERS, C.J., and HEALEY, PARSKEY, SHEA and MENT, JJ.

PETERS, Chief Judge.

The principal issue in this case is whether the holder of a passbook for a joint savings account has established that funds were improperly transferred from the account. The plaintiff, Harry Frigon, brought an action to recover damages from the defendant, Enfield Federal Savings and Loan Association, because the defendant allowed funds on deposit in a joint savings account to be withdrawn without surrender of the passbook or notice to the plaintiff. The trial court, having found that withdrawal of the funds was proper, rendered judgment for the defendant and the plaintiff has appealed.

Many of the underlying facts are undisputed. The plaintiff and his brother Edward established a joint savings account with survivorship by adding the plaintiff's name to Edward's existing account with the defendant bank. 1 The plaintiff received possession of the passbook for this joint account. All the funds deposited into the account came from Edward, and all the withdrawals were for his benefit. Because the account was denominated a survivorship account, Edward retained during his lifetime the unlimited authority to withdraw any or all of the funds it contained. The interest of the plaintiff was limited to a right to whatever funds remained in the account upon Edward's death. Before Edward's death, all of the funds in the account were transferred into a new account at the defendant bank. That transfer was accomplished through the presentation of a withdrawal request and a power of attorney executed by Edward to Attorney Walter Dudek. Several months after Edward's death, the plaintiff tendered the passbook to the bank with a request for withdrawal of the balance noted therein. That request was dishonored and this litigation ensued.

The parties were at issue, during the trial, about the circumstances surrounding the execution of the power of attorney and the reasonableness of the defendant bank's reliance upon that power of attorney to permit withdrawal of funds from the joint account without the presentation of the related passbook. The trial court found for the defendant on all the issues of the complaint. On this appeal, the plaintiff claims error in the trial court's determinations that: (1) the power of attorney was valid; (2) the defendant bank was not negligent; (3) the power of attorney carried a valid order for the withdrawal of funds from the joint account; and (4) the passbook was not required in connection with the withdrawal. We find no error.

The defendant's attack on the validity of the power of attorney raises the question of Edward's capacity on February 13, 1982, to execute a power of attorney. 2 On that day, Attorney Dudek conferred about the power of attorney with Edward at the home of Mrs. Lyons, where Edward was then living. Although Edward was then seriously ill because of cirrhosis of the liver, Edward and Dudek discussed Edward's wish to terminate the joint bank account and to have the funds transferred into a sole account. Dudek testified that Edward, despite his illness, was clear about what he wanted. William Waldman, Edward's treating physician, testified, to the contrary, that Edward's condition, including a prehepatic coma, was one of continual confusion, but, he acknowledged, the degree of Edward's confusion was variable. Waldman was unable to give a specific opinion about Edward's mental capacity on the date of the execution of the power of attorney or on the days immediately preceding or subsequent thereto. Edward had, however, been repeatedly hospitalized for his deteriorating health. One month after the execution of the power of attorney, a conservator was appointed for the person and estate of Edward and, after another month, Edward died.

The question of capacity, like other questions concerning the creation of an agency relationship, is a question of fact. Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 133, 464 A.2d 6 (1983); Botticello v. Stefanovicz, 177 Conn. 22, 26, 411 A.2d 16 (1979). The trial court, as the trier of the facts, had the opportunity to hear the witnesses and to determine their credibility. Its findings are reversible by this court only if they are clearly erroneous. Practice Book § 3060D. Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). In this case, since the trial court's determination had sufficient evidentiary support in credible testimony of Dudek and Waldman, the plaintiff's claim of error is unpersuasive.

The plaintiff's second claim, that the defendant bank was negligent, is seriously undermined by our conclusion that the power of attorney was valid. The plaintiff virtually concedes that he would have had no claim for negligence had the defendant, acting in accordance with the authority contained in the signature card, paid to Edward any or all of the funds held in the joint account. A fortiori, it was not negligent to pay funds to a duly appointed agent acting on Edward's behalf. The plaintiff's residual argument is that it was negligent for the defendant to pay funds out of the joint account without the tender of the passbook and without notification of the plaintiff, when withdrawal was sought by someone other than Edward personally. The trial court construed the agreement of the parties to the contrary. We agree with the trial court's construction.

The only signed agreement between the parties was the signature card, which unequivocally directed the defendant bank to honor withdrawal requests by either of the joint signatories to the account. The signature card contained no reference to presentation of the passbook as a condition of a proper withdrawal. Neither the signature card nor the passbook stated that withdrawals without the presentation of the passbook required notification of other signatories of the joint account. It was reasonable for the trial court to construe this documentation to make the signature card the primary source of the contractual agreement between the parties. A signature card is essential to the creation of a bank account; a passbook ordinarily is not. A passbook serves a useful function in providing assurance of the propriety of a withdrawal if the bank is in doubt about the auspices of a withdrawal order. When the bank has been presented and has honored a withdrawal order which is in fact wholly authorized, the finder of the facts may conclude that presentation of the passbook is not essential. See, e.g., Haseman v. Union Bank of Mena, 262 Ark. 803, 807, 562 S.W.2d 45 (1978) and, after retrial, 268 Ark. 318, 321, 597 S.W.2d 67 (1980); Paskas v. Illini Federal Savings & Loan Assn., 109 Ill.App.3d 24, 28-30, 64 Ill.Dec. 642, 440 N.E.2d 194 (1982); Kuehl v. Terre Haute First National Bank, Ind.App., 436 N.E.2d 1160 (1982); contra Keokuk Savings Bank & Trust Co. v. Desvaux, 259 Iowa 387, 143 N.W.2d 296 (1966).

Since the agreement between the parties imposed no duty of care upon the defendant bank beyond that which it exercised, and since the plaintiff introduced no other evidence to establish any further duty of care, the...

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17 cases
  • Gajewski v. Pavelo
    • United States
    • Connecticut Court of Appeals
    • 16 Febrero 1995
    ...issue. The plaintiffs cannot claim error in a charge where the alleged error was beneficial to them. Frigon v. Enfield Savings & Loan Assn., 195 Conn. 82, 87, 486 A.2d 630 (1985); Rapuano v. Oder, 181 Conn. 515, 520, 436 A.2d 21 We have also determined that the purpose of the building code ......
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    ...133, 464 A.2d 6 (1983). Questions concerning the creation of an agency relationship are ones of fact. Frigon v. Enfield Savings & Loan Assn., 195 Conn. 82, 85, 486 A.2d 630 (1985). The determination of the status of an individual as an independent contractor or employee is, in the absence o......
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    ..."[A] bank is indebted to its account holders for the amount of the funds that they have deposited." Frigon v. Enfield Savings & Loan Assn., 195 Conn. 82, 87, 486 A.2d 630 (1985); Wawrzynowicz v. Wawrzynowicz, 164 Conn. 200, 202, 319 A.2d 407 (1972); State v. Vars, 154 Conn. 255, 262, 224 A.......
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    • United States
    • Connecticut Supreme Court
    • 5 Agosto 2014
    ...... imposes no special duty of care for the safekeeping of the funds on deposit.” (Citations omitted.) Frigon v. Enfield Savings & Loan Assn., 195 Conn. 82, 87, 486 A.2d 630 (1985). Accordingly, the plaintiff must assert and demonstrate additional circumstances that establish more than a ba......
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1 books & journal articles
  • The Status of Connecticut Law on the Fiduciary Duty of Lenders in Loan Transactions
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 69, 1994
    • Invalid date
    ...Connecticut Bar Association. 1. This article does not deal with situations concerning deposits. See Frijon v. Enfield Sav. & Loan Ass'n, 195 Conn. 82, 87 (1988), Monachelli v. Mechanics & Farmer Savings Bank, 13Conn. App. 662 (1988) (no per se fiduciary duty). Nor does this article deal wit......

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