Stauffer v. Oakwood Deposit Bank

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtGUERNSEY; COLE, P. J., and YOUNGER
Citation249 N.E.2d 848,19 Ohio App.2d 68
Parties, 48 O.O.2d 127, 6 UCC Rep.Serv. 931 STAUFFER, Appellant, v. The OAKWOOD DEPOSIT BANK, Appellee.
Decision Date16 July 1969

Page 68

19 Ohio App.2d 68
249 N.E.2d 848, 48 O.O.2d 127, 6 UCC Rep.Serv. 931
STAUFFER, Appellant,
v.
The OAKWOOD DEPOSIT BANK, Appellee.
Court of Appeals of Ohio, Third District, Paulding County.
July 16, 1969.

[249 N.E.2d 850] Syllabus by the Court

1. Division (D) of Section 1304.29, Revised Code, is not a statute of limitations limiting the time within which an action shall be brought. It merely creates a condition to the right of a bank customer, in an action against the bank, to assert the lack of the bank's authority to debit the customer's account due to an alleged unauthorized signature of the customer.

2. The failure of the customer to fulfill such condition by discovering and reporting his unauthorized signature to the bank within one year from the time the item on which the signature appears and the bank statement of account showing a debit entry thereon of such item are made available to the customer is a matter of defense upon which the bank has the burden of proof and which may be waived by the bank by its failure to assert same.

3. Division (F) of Section 1304.29, Revised Code, is a statute of limitations limiting the time within which an action shall be brought, constituting an affirmative defense which must be pleaded by the defendant bank in those cases where the running of the statute does not appear from the allegations of the plaintiff's petition. The failure to so plead constitutes a waiver of same.

4. Section 1304.29, Revised Code, does not create a cause

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of action against a bank for debiting a depositor's account pursuant to an unauthorized signature. Bank customer's cause of action is the common-law action for money had and received.

5. The limitation of the time within which an action shall be brought, prescribed by division (F) of Section 1304.29, Revised Code, is applicable to a bank customer in an action against the bank for money had and received, where the knowledge of the bank as to the authority for the customer's signature on an item debited to his account is not absolute but involves the knowledge and activities of a third party.

Weaner, Hutchinson & Zimmerman and Karl H. Weaner, De Finance, for appellant.

[249 N.E.2d 851] Stroup & Walters and Sumner J. Walters, Van Wert, for appellee.

GUERNSEY, Judge.

On July 30, 1962, a teller of defendant bank, acting under the instructions of its cashier, signed plaintiff Paul Stauffer's name to a counter check in the amount of $2,034 made payable to 'Cash,' debited same to plaintiff's checking account, and credited the checking account of one Rolland Porter with the same amount. On July 3, 1967, plaintiff filed his action against the bank to recover the sum of money thus charged to his account claiming that the withdrawal was not authorized. Upon trial plaintiff testified that his signature had been affixed to the counter check without his authority and the employees of the bank testified to the effect that they had no recollection of any specific authority personally communicated by plaintiff to the bank. Defendant's amended answer and the evidence further indicate that on or about September 30, 1962, plaintiff received from the bank a statement of his acccount reflecting such debit accompanied

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by the cancelled counter check. Plaintiff was uncertain as to when he first reported the alleged unauthorized signature to the bank. The cashier testified that it seemed to him 'like it was the first part of 1963.' The trial court found, 'Although there is no specific evidence of precisely when plaintiff so notified defendant, it is clear that it occurred no later than December 31, 1965.'

The trial court further found that plaintiff was barred from recovery because he did not bring his action within one year from December 31, 1965, as required by Section 1304.29(F), Revised Code, and entered judgment dismissing plaintiff's petition, which is the judgment from which this appeal is taken by the plaintiff. He claims error in that (1) the general verdict of the trial court is not sustained by the evidence and is contrary to law; (2) defendant was not entitled to raise the bar of the statute of limitations (Section 1304.29(F)) without pleading same as an affirmative defense; and (3) the trial court ignored the undisputed evidence that the bank teller with knowledge of the cashier, wrote a counter check payable to cash, signed plaintiff's...

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9 practice notes
  • Brighton, Inc. v. Colonial First Nat. Bank
    • United States
    • New Jersey Superior Court – Appellate Division
    • October 15, 1980
    ...805 (Sup.Ct.1975); Terry v. Puget Sound Nat'l Bank, 80 Wash.2d 157, 492 P.2d 534, 535 (Sup.Ct.1972); Stauffer v. Oakwood Deposit Bank, 19 Ohio App.2d 68, 249 N.E.2d 848, 852 (Ct.App.1969); Gennone v. Peoples Nat'l Bank & Trust Co., 51 Pa. D. & C. 2d 529, 9 U.C.C.Rep. 707 The statute......
  • Pine Bluff Nat. Bank v. Kesterson, No. 74--231
    • United States
    • Supreme Court of Arkansas
    • March 17, 1975
    ...P. Harlin Construction Co. v. Continental Bank & Trust Co., 23 Utah 2d 422, 464 P.2d 585 (1970); Stauffer v. Oakwood Deposit Bank, 19 Ohio App.2d 68, 48 Ohio O.2d 127, 249 N.E.2d 848 (1969); Salsman v. National Community Bank of Rutherford v. Breslow, 102 N.J.Super. 482, 246 A.2d 162 (1......
  • Gollihue v. Nat'l City Bank, No. 11AP–150.
    • United States
    • United States Court of Appeals (Ohio)
    • October 20, 2011
    ...that R.C. 1304.29(D) did not limit the time within which an action must be brought. See Stauffer v. Oakwood Deposit Bank (1969), 19 Ohio App.2d 68, 71–72, 249 N.E.2d 848 (“Examination of * * * the statute shows that it is not a statute of limitations at all, for [it] does not purport to lim......
  • Gerber v. City Nat. Bank of Florida, No. 92-1638
    • United States
    • Court of Appeal of Florida (US)
    • May 4, 1993
    ...176 N.J.Super. 101, 422 A.2d 433, 437 (Ct.App.Div.1980), aff'd, 86 N.J. 259, 430 A.2d 902 (1981); Stauffer v. Oakwood Deposit Bank, 19 Ohio App.2d 68, 249 N.E.2d 848, 852 (1969); McMickle v. Girard Bank, 356 Pa.Super. 521, 515 A.2d 16, 17 (1986); Silvia v. Industrial Nat'l Bank of R.I., 121......
  • Request a trial to view additional results
9 cases
  • Brighton, Inc. v. Colonial First Nat. Bank
    • United States
    • New Jersey Superior Court – Appellate Division
    • October 15, 1980
    ...805 (Sup.Ct.1975); Terry v. Puget Sound Nat'l Bank, 80 Wash.2d 157, 492 P.2d 534, 535 (Sup.Ct.1972); Stauffer v. Oakwood Deposit Bank, 19 Ohio App.2d 68, 249 N.E.2d 848, 852 (Ct.App.1969); Gennone v. Peoples Nat'l Bank & Trust Co., 51 Pa. D. & C. 2d 529, 9 U.C.C.Rep. 707 The statute......
  • Pine Bluff Nat. Bank v. Kesterson, No. 74--231
    • United States
    • Supreme Court of Arkansas
    • March 17, 1975
    ...P. Harlin Construction Co. v. Continental Bank & Trust Co., 23 Utah 2d 422, 464 P.2d 585 (1970); Stauffer v. Oakwood Deposit Bank, 19 Ohio App.2d 68, 48 Ohio O.2d 127, 249 N.E.2d 848 (1969); Salsman v. National Community Bank of Rutherford v. Breslow, 102 N.J.Super. 482, 246 A.2d 162 (1......
  • Gollihue v. Nat'l City Bank, No. 11AP–150.
    • United States
    • United States Court of Appeals (Ohio)
    • October 20, 2011
    ...that R.C. 1304.29(D) did not limit the time within which an action must be brought. See Stauffer v. Oakwood Deposit Bank (1969), 19 Ohio App.2d 68, 71–72, 249 N.E.2d 848 (“Examination of * * * the statute shows that it is not a statute of limitations at all, for [it] does not purport to lim......
  • Gerber v. City Nat. Bank of Florida, No. 92-1638
    • United States
    • Court of Appeal of Florida (US)
    • May 4, 1993
    ...176 N.J.Super. 101, 422 A.2d 433, 437 (Ct.App.Div.1980), aff'd, 86 N.J. 259, 430 A.2d 902 (1981); Stauffer v. Oakwood Deposit Bank, 19 Ohio App.2d 68, 249 N.E.2d 848, 852 (1969); McMickle v. Girard Bank, 356 Pa.Super. 521, 515 A.2d 16, 17 (1986); Silvia v. Industrial Nat'l Bank of R.I., 121......
  • Request a trial to view additional results

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