Miller v. American Bank & Trust Co.

• Decision Date: 01 May 1922
• Docket Number: 10102.
• Citation: 71 Colo. 346,206 P. 796
• Parties: MILLER v. AMERICAN BANK & TRUST CO.
• Court: Colorado Supreme Court

206 P. 796

71 Colo. 346

MILLER v. AMERICAN BANK & TRUST CO.

No. 10102.

Supreme Court of Colorado, En Banc.

May 1, 1922

Error to District Court, Denver County; Clarence J. Morley, Judge.

Action by Charles F. Miller against the American Bank & Trust Company. Judgment for defendant when plaintiff elected to stand by his complaint after demurrer thereto was sustained and plaintiff brings error.

Reversed and remanded.

Charles F. Miller, of Denver, pro se.

Fillius Fillius & Winters, of Denver, for defendant in error.

BAILEY J.

Plaintiff Charles F. Miller, brought this suit to compel payment to him by the defendant bank of a certain deposit in its savings account department. Plaintiff having amended his complaint, defendant demurred thereto, the demurrer was sustained and the cause dismissed, on Miller's election to stand by his cause as made. Miller now brings the record here for review on error.

The savings account in question was opened in December, 1916, by Frank Sharp and Nettie B. Losee, by a deposit of $7,000.00, under the following agreement:

'The German-American Trust Company.

'No. 47,671.

'In Account with Frank Sharp or Nettie B. Losee.'

After a statement of account showing the deposit, credit of interest and one withdrawal, is the following:

'We hereby agree to the by-laws, rules and regulations of the German-American Trust Company, governing savings bank accounts, as set forth in the passbook furnished us upon opening our account, and to such other rules and regulations as the bank may prescribe.

'We further agree that all deposits now made or hereafter made for this account are our joint property and upon the death of either of us shall pass and become the absolute property of the survivor. Any part thereof may be withdrawn upon the order of either of us or the survivor.

Frank Sharp.

'Nettie B. Losee.'

Sharp died in July, 1917, and in November, 1919, Nettie B. Losee for value assigned and transferred all her interest in the account to plaintiff. The bank declined to pay over the money to him on his demand as such assignee, and he brought this suit with the above-stated result.

The complaint as amended shows the deposit with The German-American Trust Company that The American Bank & Trust Company is its successor, sets forth the agreement quoted above, the fact of Sharp's decease, full compliance with all the rules and regulations of the bank, the assignment to plaintiff, his demand for payment and the bank's refusal. Also that Nettie B....