Appeal from Judgment of the Municipal Court of Oak Park; the
Hon. PHILIP F. LOCKE, Judge, presiding. Affirmed as modified.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Rehearing denied October 10, 1962.
Veronica Nielson, hereinafter referred to as the plaintiff, brought an action in the Municipal Court of Oak Park against Suburban Trust & Savings Bank, hereinafter referred to as the defendant, to recover the sum of $2,977.52 which the plaintiff alleged the defendant had improperly charged against her account. The case was tried without a jury, and on May 31, 1961 the trial court entered judgment for the plaintiff for $2,977.52 plus the usual rate of interest to which the plaintiff would have been entitled if the money had remained in the bank. From that judgment the defendant takes this appeal.
On September 26, 1959 the plaintiff and Clifford Nielson were married. On October 13, 1959 they opened a joint savings account with the defendant. At the time they opened the account they signed a card on which the following appears: "JOINT ACCOUNT PAYABLE TO THE ORDER OF EITHER, OR THE SURVIVOR. The Undersigned hereby agrees to the By-Laws, Rules and Regulations governing the Savings Department of SUBURBAN TRUST & SAVINGS BANK, and further agree that all deposits in this account, or any part thereof, or any interest or dividend thereon, may be paid to any one of the undersigned, whether the other or others be living or not, on the receipt or acquittance of any of the undersigned."
During the early part of January, 1960 the Nielsons were experiencing marital difficulties. The balance existing in their account on January 14, 1960 was $12,189.27. On that morning the plaintiff went to the defendant and talked to the cashier. She told him that she wanted to draw out her own money which she had originally put into the joint account and told him the amount that she intended to withdraw. She also told him that her husband had the savings account book. The cashier took the plaintiff to the teller's cage and told the teller that she should be permitted to withdraw $9,166.79 from the joint account. This was done. She deposited the money in her own name in another savings account and a new bank book was issued to the plaintiff. After the withdrawal the balance in the joint account was $3,022.48. The next day, January 15th, plaintiff's husband went to the defendant, presented the savings account passbook and made a withdrawal of $6,000 from the joint account. This withdrawal resulted in an overdraft of $2,977.52. The defendant on January 16th tried to reach plaintiff but was unsuccessful. On January 18th the defendant contacted the plaintiff and told her that it was going to charge her individual account with the amount of the overdraft. This was done. The plaintiff then brought suit against the defendant in the Municipal Court of Oak Park.
In defendant's answer it is admitted that "plaintiff stated to an officer of the bank that the said book was in the possession of her husband, that she was having marital difficulties and that she desired to withdraw the sum of $9,166.79 which plaintiff estimated to be the sum deposited by her in said joint savings account at the time it was opened on October 15, 1959, plus interest. . . ."
After the defendant had filed its answer, on April 27, 1961 the defendant filed a motion to transfer the cause to the Circuit Court of Cook County in order to permit the defendant to serve Clifford Nielson and file a third party action against him. This motion the court denied. After a hearing before the court without a jury the court found in favor of the plaintiff and entered judgment for $2,977.52 plus the usual rate of interest to which the plaintiff would have been entitled if the money had remained in the bank.
This is a case of first impression in this State. No cases have been found by either counsel or by the court which are directly in point.
In this court the defendant urges that the relationship between it and the plaintiff is contractual and that the parties are bound by the terms of the contract.
The only Illinois statute dealing with the subject matter is not found in the chapter of the Illinois Revised Statutes dealing with banks, but is found in chapter 76, "Joint Rights and Obligations," which states in part, in paragraph 2:
"When a deposit in any bank or trust company transacting business in this State has been made or shall hereafter be made in the names of two or more persons payable to them when the account is opened or thereafter, such deposit or any part thereof or any interest or dividend thereon may be paid to any one of said persons whether the other or others be living or not, and when an agreement permitting such payment is signed by all said persons at the time the account is opened or thereafter the receipt or acquittance of the person so paid shall be valid and sufficient discharge from all parties to the bank for any payments so made."
"The familiar joint bank account has had an uneasy career in the courts. . . ." In re Estate of Schneider, 6 Ill.2d 180, 183, 127 N.E.2d 445, 447. The courts in most cases have been faced with the determination of the rights of joint depositors or, in the case of death of a joint depositor, of the survivor. In In re Estate of Schneider, supra, the question involved a conflict between the surviving donee-depositor and the estate of the donor-depositor. In that case the court pointed out that the relationships arising in the joint bank account do not readily fit into common law categories. The four unities of a common law joint tenancy are absent, and the fact that either depositor under the contract could withdraw the entire amount was not in accord with the theory of joint tenancy.
Leaf v. McGowan, 13 Ill. App.2d 58, 141 N.E.2d 67, was a case involving the right of a judgment creditor to garnish a joint bank account when one of the parties to it was a judgment debtor, and in that case the court quotes the following from Park Enterprises, Inc. v. Trach, 233 Minn. 467, 47 N.W.2d 194:
"This type of account is difficult, if not impossible, to classify under traditional categories of legal ownership. The account is distinguished from a joint tenancy because of the fact that it is joint and several, whereas in a joint tenancy there is joint ownership only. The survivorship feature of the account readily distinguishes it from a tenancy in common, and yet is not sufficient alone to make it a joint tenancy. . . . Since the type of ownership which the bank and its depositors have created by their contract defies classification under traditional concepts of property ownership, we are forced to treat this case as presenting a contract question and must decide what the incidents of this type of ownership are primarily by reference to the terms of the contract creating it."
In the case before us we are not concerned with the rights of the depositors as between themselves, but our principal consideration is the contract existing ...