Perdue v. State Nat. Bank

47 So. 2d 261, 254 Ala. 80, 1950 Ala. LEXIS 509

• Court: Supreme Court of Alabama
• Decided: June 30, 1950
• Docket: 6 Div. 891
• Status: Published

Opinions

BROWN, Justice.

The transaction between Perdue- and wife and complainant bank boiled down to last analysis was simply a loan of money by the former to the latter on express contract on the part of the complainant to-pay to either one or both with interest on presentation of the pass book showing the true state of the account with accrued interest on demand. As the contract states* “The bank considers the possession of the pass book as the important condition, and reserves the right, if it so desires to pay on it alone.” As to the legal effect of the transaction see Clark v. Young, 246 Ala. 529 Par. [2], 21 So.2d 331, and authorities there cited.

The contract printed on the pass book provides: “Deposits may be made jointly by husband and wife, either one or both. The signature of either one to be sufficient for withdrawal of all or any part of funds standing to the credit of both.” Under the terms of the contract, when the wife Ellen Perdue appeared in person and presented the pass book showing the true state of the account and requested the bank to pay the full amount to her and the bank refused to do so, it breached said contract and the duty growing out of said contract, —a tort. Pratt v. First National Bank of Fayette, 243 Ala. 257, 261, 9 So.2d 744; H. C. Schrader Co. v. A. Z. Bailey Grocery Co., 15 Ala.App. 647, 74 So. 749. In the face of such demand and the express provisions of the contract, it had no right to doubt or to inquire into the ownership of the debt created by the loan. That inquiry was foreclosed by its brain-child, — the contract endorsed on and a part of the pass book. The money in the hands of the bank was not the property of the depositors but the property of the bank which it was under duty to use in discharge of its obligation on demand of Mrs. Perdue, who had the pass book in her possession and made demand on the bank to pay.

The facts of this case bring it clearly within the influence of § 128(3), Title 5, Code of 1940, Cum.Supp.1947, regulating procedure in case of adverse claim. The legislative purpose clearly expressed is to put on such adverse claimant the burden of bringing on the litigation and its consequences if he fails to establish his claim and to provide indemnity to the stakeholder against “any and all liability, loss, damage, costs and expenses, for and on account of the payment or recognition of such adverse claim or the dishonor of or failure to pay the check or failure to comply with other order of the person to whose, credit the deposit stands on the books of said bank or trust company; * * not merely to give the stakeholder an option to proceed as provided by the statute or to bring a bill of equitable interpleader to the detriment of the depositor, who had legal authority to demand payment and give full acquittance to the bank. The cited statute is remedial and will be liberally construed and applied to contracts existing prior to its passage. Tutwiler v. Tuskaloosa Coal, Iron & Land Co., 89 Ala. 391, 7 So. 398; Coosa River Steamboat Co. v. Barclay, 30 Ala. 120; Modern Order of Praetorians v. Merriman, 204 Ala. 197, 85 So. 473.

The complainant was fully advised of the facts, the provisions of the contract on which its rights and duty and those of the defendant Mrs. Perdue rested and for whose benefit the deposit was made and that she could give full acquittance for the debt.

It is our opinion that the demurrer to the bill was well taken and the court erred in overruling the same. A decree will be here entered sustaining the demurrer and remanding the cause for further proceedings not inconsistent with this opinion. The complainant is allowed thirty days from the date the mandate of this court reaches and is filed with the register within which to plead.

Reversed, rendered and remanded.

FOSTER, LAWSON, SIMPSON and STAKELY, JJ., concur.