Appeal from Superior Court, Maricopa County; Walter J. Thalheimer, Judge.
W. H. Chester, of Phoenix, for appellant.
Gust, Rosenfeld, Divelbess, Robinette & Linton, of Phoenix, for appellee.
Stanford, Chief Justice. LaPrade and Udall, JJ., concurring.
Stanford, Chief Justice.
[67 Ariz. 211] On August 31, 1946, plaintiff (appellant) had a joint checking account with Dorothy Cowen, his wife, in the defendant bank (appellee), and on said date plaintiff drew out of said account by check the sum of $ 100 cash. He then went to the savings department of said bank and opened a savings account under his separate name in the sum of $ 500, giving the bank a check drawn on the joint account of himself and his
wife. To evidence the $ 500 deposited in the savings account opened by the plaintiff, the defendant issued a pass book showing the amount deposited and accepted the check presented for that amount.
August 31, 1946, was on a Saturday; September 1st was Sunday; and September 2nd was Labor Day (both legal holidays). Accordingly the bank was not open for business until September 3rd, on which date, at the time of the opening of the bank, plaintiff's wife went to the bank and withdrew from the same joint checking account of husband and wife the balance that the bank record erroneously showed to be in the joint account, namely the sum of approximately $ 689; that at the time the wife of plaintiff appeared on September 3rd and withdrew the total sum in said account, the $ 500 check, which had been drawn by the plaintiff on August 31st against the joint account, had not been charged against said joint account. When defendant discovered what it termed a "double withdrawal" of the sum of $ 500 [67 Ariz. 212] from the joint checking account of plaintiff and his wife it cancelled the deposit of $ 500 by the plaintiff in the savings account claiming the account was overdrawn, and advised plaintiff of its action.
The record shows that there were marital difficulties between plaintiff and his wife at the time the checks in question were drawn though the Bank had no knowledge thereof. Divorce action was filed on September 16, 1946, by the wife against plaintiff, and in the complaint filed the wife disclosed that the $ 500 here in question was in her possession, and on September 26, 1946, plaintiff and his wife entered into a property settlement agreement by which it was agreed that the moneys then in her possession were to be retained by her.
The case was tried before a jury. After submission of all evidence the defendant moved for an instructed verdict on the following two grounds:
"1. * * * that it appears from the record evidence in this case the admissions of the plaintiff that he had knowledge of such facts to charge him with notice of the fact that this $ 500.00 had been drawn out of the account by his wife when he made the property settlement agreement, and that having such knowledge the effect of that property settlement agreement was to assign the bank's right to recover that $ 500.00 to his wife and that he now has no such right to recovery."
"2. * * * that this was a joint account payable, withdrawable upon the checks of either Appellant or his wife; that the authority of each of them to draw checks on this account was never terminated until the account was closed which was some time after the events that happened here, that is, some time after September 3rd or 4th. And that such being the case when the wife drew a check on the account which she was authorized to do by the terms of the joint agreement she overdrew the account to the extent of the amount the account was short. That such overdraft gave the bank the right to charge that ...