Larrus v. First Nat. Bank of San Mateo County

CourtCalifornia Court of Appeals
Writing for the CourtNOURSE
Citation122 Cal.App.2d 884,266 P.2d 143
PartiesLARRUS et al. v. FIRST NAT. BANK OF SAN MATEO COUNTY. Civ. 15661.
Decision Date28 January 1954

Page 143

266 P.2d 143
122 Cal.App.2d 884
LARRUS et al.
v.
FIRST NAT. BANK OF SAN MATEO COUNTY.
Civ. 15661.
District Court of Appeal, First District, Division 2, California.
Jan. 28, 1954.

Page 144

[122 Cal.App.2d 885] DiMaria, DiMaria & Daschbach, Palo Alto, for appellants.

Ross, Ross & McGovern, Redwood City, for respondent.

Page 145

[122 Cal.App.2d 886] NOURSE, Presiding Justice.

This is an action by depositors for the amount of a check credited to their account, but charged back by defendant bank when it found that the funds were insufficient. The court gave judgment for the bank and plaintiffs, depositors, appeal.

The notice of appeal was filed on October 7, 1952, prior to the rendition of judgment and the filing of the findings of fact and conclusions of law, which were all dated October 8, 1952, and filed the same day. However on August 29, 1952, the court had, in an order for judgment, which appellants mistook for the appealable judgment, announced its intended ruling. Under the last provision of Rule 2(c) of the Rules on Appeal, added by an amendment effective January 1, 1951, we may in our discretion, for good cause, treat such notice of appeal as filed immediately after entry of the judgment. We shall use this power here considering the general desirability of deciding appeals on the merits, the absence of any indication of prejudice and the failure of respondent to urge dismissal of the appeal.

The facts are mainly undisputed. On December 1, 1948, Mrs. Larrus took to the defendant bank, herein further called the bank, with which she and her husband had had no prior dealings, a check of $1500, drawn on it by Martini Motors, signed by Eugene Martini, Mrs. Larrus' brother, and made payable to her and her husband. She testified that the check was given in payment of the balance of a loan made by them to Martini. She asked an employee of the bank whether the check was good and was told that it was, the funds in the account then being sufficient. Mrs. Larrus then stated that she wished to open an account in the name of her husband and herself as trustees for their two named sons and to deposit the check in that account. She was told that for the opening of such an account the signature of her husband also was required. She was given a card for him to sign and signed one herself. The cards contained directly above the space for the signature a printed statement that the depositor agreed that the account was to be carried as a savings account and that the funds in it should be governed by the by-laws, regulations, rules and practices of the bank. Her attention was not expressly called to this clause and she was not advised of the contents of the by-laws, rules and regulations. The following morning, December 2, 1948, Mrs. Larrus took the signed cards and the check endorsed in blank by her and her husband back to the bank and was given a savings pass book in which the [122 Cal.App.2d 887] amount of the check was entered. The pass book contained printed rules governing savings accounts, which were not called to her attention. The bank records received in evidence show that on December 2, 1948, at the beginning of business there was in the Martini Motors account $2348.88. On that date there were charged to said account one check of $70, one of $1875, one of $25 and the Larrus check of $1500. No deposit was made on it that day. When it was found that by the total of the checks, amounting to $3,470, the account was overdrawn a counter entry of $1500 was made the same day to cancel the charge of the Larrus check and plaintiffs' savings account was charged with that amount. On December 7, 1948, plaintiffs received a return item advice letter dated December 4, 1948, and bearing a postmark of December 6, 1948, advising them that their account had been charged and that the check was being held for their instructions. Appellants did not react in any way on this notice until they communicated with the bank through their attorneys in 1950.

The main question in dispute is the effectiveness of the crediting of appellants' account with the amount of the check. At that time such matters were governed by section 16c of the Bank Act of 1909 as amended, Deering's Gen.Laws, Act 652, which reads in part: 'Any credit allowed by any bank organized under the laws of, or doing business in, this State, for any check, note or other instrument providing for the payment of money and drawn on, through or payable at the same bank in which it is deposited * * * shall be provisional only, subject to final payment * * *...

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22 practice notes
  • Perdue v. Crocker National Bank, S.F. 24591
    • United States
    • United States State Supreme Court (California)
    • July 18, 1985
    ...(see Hoffman v. Security Pacific Nat. Bank (1981) 121 Cal.App.3d 964, 969, 176 Cal.Rptr. 14; Larrus v. First National Bank (1954) 122 Cal.App.2d 884, 889-890, 266 P.2d 143) and decisions of other states (see, e.g., In re Estate of Cilvik (1970) 439 Pa. 522, 267 A.2d 836, 838, fn. 2) also vi......
  • Specht v. Netscape Communications Corp., Docket No. 01-7870.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 1, 2002
    ...terms printed on claim check, because a "ordinarily prudent" person would have been alerted to the terms); Larrus v. First Nat'l Bank, 122 Cal.App.2d 884, 888, 266 P.2d 143, 147 (1954) ("clearly printed" statement on bank card stating that depositor agreed to bank's regulations provided suf......
  • Perdue v. Crocker Nat. Bank
    • United States
    • California Court of Appeals
    • March 25, 1983
    ...366; Torrance N. Bk. v. Enesco F. Credit Union (1955) 134 Cal.App.2d 316, 320-321, 285 P.2d 737; Larrus v. First National Bank (1954) 122 Cal.App.2d 884, 889-890, 266 P.2d 143; Faulkner v. Bank of Italy (1924) 69 Cal.App. 370, 374-375, 231 P. 380.) The fact that the signature card itself do......
  • Hohn, Application of
    • United States
    • California Court of Appeals
    • August 21, 1964
    ...in the light of pertinent decisions such as Luz v. Lopes, 55 Cal.2d 54, 10 Cal.Rptr. 161, 358 P.2d 289; Larrus v. First National Bank, 122 Cal.App.2d 884, 886, 266 P.2d 143; People v. McShane, 126 Cal.App. 2d Supp. 845, 846-847, 272 P.2d 571; Perry v. First Corporation, 167 Cal.App.2d 359, ......
  • Request a trial to view additional results
22 cases
  • Perdue v. Crocker National Bank, S.F. 24591
    • United States
    • United States State Supreme Court (California)
    • July 18, 1985
    ...(see Hoffman v. Security Pacific Nat. Bank (1981) 121 Cal.App.3d 964, 969, 176 Cal.Rptr. 14; Larrus v. First National Bank (1954) 122 Cal.App.2d 884, 889-890, 266 P.2d 143) and decisions of other states (see, e.g., In re Estate of Cilvik (1970) 439 Pa. 522, 267 A.2d 836, 838, fn. 2) also vi......
  • Specht v. Netscape Communications Corp., Docket No. 01-7870.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 1, 2002
    ...terms printed on claim check, because a "ordinarily prudent" person would have been alerted to the terms); Larrus v. First Nat'l Bank, 122 Cal.App.2d 884, 888, 266 P.2d 143, 147 (1954) ("clearly printed" statement on bank card stating that depositor agreed to bank's regulations provided suf......
  • Perdue v. Crocker Nat. Bank
    • United States
    • California Court of Appeals
    • March 25, 1983
    ...366; Torrance N. Bk. v. Enesco F. Credit Union (1955) 134 Cal.App.2d 316, 320-321, 285 P.2d 737; Larrus v. First National Bank (1954) 122 Cal.App.2d 884, 889-890, 266 P.2d 143; Faulkner v. Bank of Italy (1924) 69 Cal.App. 370, 374-375, 231 P. 380.) The fact that the signature card itself do......
  • Hohn, Application of
    • United States
    • California Court of Appeals
    • August 21, 1964
    ...in the light of pertinent decisions such as Luz v. Lopes, 55 Cal.2d 54, 10 Cal.Rptr. 161, 358 P.2d 289; Larrus v. First National Bank, 122 Cal.App.2d 884, 886, 266 P.2d 143; People v. McShane, 126 Cal.App. 2d Supp. 845, 846-847, 272 P.2d 571; Perry v. First Corporation, 167 Cal.App.2d 359, ......
  • Request a trial to view additional results

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