The opinion
Mr. Justice Angstman,
Dissenting:
I do not find in the record any evidence justifying the action of defendant in depositing the checks aggregating the sum of $26,700 in the joint account of Mrs. Ludwig and Mrs. Hutchison thereby making it possible for Mrs. Hutchison to withdraw the fmids. The only evidence on the point as to the extent of the authority of Mrs. Hutchison to act as agent for Mrs. Lud
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wig, which was communicated to the bank, came from defendant’s witness Fousek, its cashier. That evidence was to the effect that Mrs. Ludwig opened a joint account in the bank with Mrs. Hutchison; that Mrs. Ludwig told him that “she was placing all her affairs in the hands of her daughter [Mrs. Hutchison] for disposition, and she wanted to know if I could not possibly open an account for her in such a manner that the daughter could have complete charge of the account without requiring Mrs. Ludwig’s presence, attention or signature. * * * She told me it was her plan to dispose of all her properties and effects in the city, and that she needed a rest very badly and planned on going to California with her daughter a few months until she was rested up. ” The witness was then asked: “Did she say anything about what was to be done with the monies derived from the sale of the properties?” After objection was overruled, his answer was: “There was no specific amounts or certain properties designated. She merely said she was disposing of all her holdings in the city of Great Falls. What they were I didn’t know. ’ ’ The answer, it will be noted, was not responsive to the question, and so far as the point involved is concerned, it might as well have been answered by saying, “No.” Mrs. Hutchison corroborated Fousek as to what was said when the joint account was established.
Another witness for defendant, attorney I. W. Church, testified that plaintiff had told him she “had opened a small bank account in her joint name and that of her daughter, Lillian [Mrs. Hutchison], to take care of small, incidental bills. # * * They had opened up this bank account, and the daughter was to pay these small bills, as I understood, outstanding at that time. ’ ’
The record also shows, and this is the best evidence of Mrs. Ludwig’s intention, but this was not known to the bank at the time of depositing the checks in question to the joint account, that she had executed a power of attorney to Mr. Hutchison, her son-in-law, to sell her property in Great Falls, to receive and receipt for all moneys to be paid therefor, and “to deposit in my name in any bank or banks, any and all moneys collected or received by him.” Had the bank known of this power of
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attorney, it would not have been warranted in depositing the cheeks made payable to Mrs. Ludwig and not endorsed by her, in the joint account and thus making it possible for Mrs. Hutchison to receive the proceeds thereof for her own benefit. As well might the bank have made the deposit directly in the name of Mrs. Hutchison.
Payment of a check to one who is not a holder under the endorsement of the payee, is at the risk of the bank.
(Dawson & White
v.
National Bank of Greenville,
197 N. C. 499 , 150 S. E. 38 ; and compare
Singer Sewing Machine Co.
v.
Citizens’ Nat. Bank,
111 N. J. L. 199, 168 Atl. 32 ;
Weissman
v.
Banque De Bruxelles,
221 App. Div. 595 , 224 N. Y. Supp. 555 ;
Quanah A. & P. Ry. Co.
v.
Wichita State Bank & Trust Co.,
127 Tex. 407 , 93 S. W. (2d) 701 , 106 A. L. R. 821; Id., (Tex. Sup.) 89 S. W. (2d) 385 .)
I think this case is analogous to that of a bank depositing a partnership check to the credit of the personal account of one of the partners. In such ease the bank is liable.
(McIntosh
v.
Detroit Sav. Bank,
247 Mich. 10 , 225 N. W. 628 .) It has been held that where a bank receives a cheek for deposit, endorsed by the payee, together with a deposit slip directing the money to be credited to the account of the payee, it has no right to credit the deposit to the joint account of the payee and another.
(Continental Nat. Bank
v.
Neville,
(9 Cir.) 285 Fed. 565 .) It is true that Mrs. Hutchison was made the agent of plaintiff with broad powers. But she was still plaintiff’s agent, transacting plaintiff’s business, and not that of her own.
As I have above stated, I find no evidence warranting a finding that that agency authorized the deposit of the funds represented by the checks in the joint account. If we assume that authorization to deposit proceeds of a check payable to one party to a joint account can be made orally and by conversation over the counter of a bank, the evidence must at least be clear, positive and convincing. Such evidence does not appear here.
I am unable to find in the record any suggestion that the trial court found that the cheeks totaling $26,700 were jointly owned by plaintiff and Mrs. Hutchison, as stated in the concurring opinion of the Chief Justice. No issue of joint ownership was
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raised by the pleadings, and I find no evidence supporting such a conclusion. There is some evidence that plaintiff had promised to pay to Mrs. Hutchison the sum of $10,000, but if it be a fact that plaintiff owes Mrs. Hutchison $10,000, that would constitute no defense in this action. If plaintiff owes Mrs. Hutchison $10,000, she and not this defendant has the right to determine when it shall be paid.
Rehearing denied February 5, 1940.
I think it was error to enter judgment for defendant and that judgment should have been for plaintiff. It may be that if plaintiff owes Mrs. Hutchison $10,000, the bank has some other remedy, but that fact would not avail as a defense to this action.