Appeal from the Circuit Court of Macon County; the Hon. RODNEY
A. SCOTT, Judge, presiding. Affirmed.
Rehearing denied November 26, 1962.
This is an appeal from a summary judgment for defendant in an action brought against it by one of the two persons named in a certain joint savings account to recover the amount thereof which was paid to the other joint depositor.
The facts are not in dispute. On November 7, 1953, the plaintiff, whose name then was Dorothy K. Stuhlmann, and her mother, Bertha A. Steiner, opened a savings account with defendant, The National Bank of Decatur. At that time plaintiff and Bertha A. Steiner signed a signature card and also signed an agreement with defendant relative to the said savings deposit. The signature card and agreement are as follows:
"Dorothy K. Stuhlmann or Bertha D. Steiner
I hereby assent to the By-Laws, Rules and Regulations of the Savings Department of the National Bank of Decatur, Ill., . . . .
/s/ Dorothy K. Stuhlmann /s/ Bertha A. Steiner
"We hereby agree to the By-Laws, Rules and Regulations of this Bank, it is hereby expressly agreed with The National Bank of Decatur, Decatur, Illinois that all moneys deposited with said bank by either or both of the undersigned shall be placed by said bank to the credit of us jointly, and may be withdrawn from, or paid out by said bank upon a request or order of Both or Either of us and upon the death of either of us, the survivor shall have the absolute right to withdraw or to be paid all moneys not then withdrawn. Subject to inheritance and estate tax laws. Date: 11-7-53
/s/ Dorothy K. Stuhlmann /s/ Bertha A. Steiner"
Following that, a passbook naming both joint depositors was issued by defendant. The passbook contained certain rules and regulations governing savings deposits, including the following: "Money will be paid to the depositor only on the presentation of the passbook. . . . If you should lose or misplace this passbook, notify this bank in writing immediately." Thereafter deposits were made in said account from an escrow contract held by the bank under which monthly payments of $90 each were made to plaintiff and her mother. These monthly payments plus interest credited to the depositors are reflected by defendant's account ledger. At the bottom of each page of said ledger, there appears the following: "I (or we) hereby assent to the Bylaws, Rules and Regulations governing savings deposits of this bank. . . . My signature on this card opposite each withdrawal is an acknowledgement that the withdrawal and extended balance are correct." Opposite each ledger entry under the heading, "Withdrawer's Signature" a space was provided for the signature of the depositor making a withdrawal. On August 27, 1959, Bertha A. Steiner demanded that the balance then in the account be paid to her. She signed the account ledger as withdrawer and defendant thereupon paid over to her the balance then in the account, which was $7,039.96. At the time said withdrawal was made the passbook was held by plaintiff and was not presented to the bank. On October 10, 1959, plaintiff appeared at the bank and withdrew the sum of $180 from the account, which represented the balance which had accumulated after the withdrawal of August 27, 1959. At that time plaintiff knew of the withdrawal made by Bertha A. Steiner on August 27, 1959. Thereafter and until June 10, 1961, plaintiff appeared at the bank from time to time and withdrew from said account each of the $90 monthly deposits made from the escrow account during that period. On the occasion of each of said withdrawals, plaintiff signed her name on the bank's ledger sheet in the space marked, "Withdrawer's Signature." Plaintiff deposited each withdrawal in a new account which she opened on October 9, 1959. The passbook itself is not included in the record and what entries were made therein, if any, are not disclosed. Bertha A. Steiner died on May 28, 1961 and on June 27, 1961, this action was instituted.
Plaintiff's theory in the trial court and likewise on this appeal is that in permitting Bertha A. Steiner to make the withdrawal of August 27, 1959 without presentation of the passbook, defendant breached its agreement with plaintiff and as a result is liable for the amount of the Steiner withdrawal.
We think the solution of the problem presented in this appeal is to be found in the agreement between the parties and which appears to be plain and unambiguous. Whether the defendant failed in any duty to plaintiff depends on the provisions of such agreement. It is elementary that the agreement of the parties governs their rights thereunder unless the undertaking be contrary to some rule of positive law or offensive to ...