Rosenstein v. Mechanics & Farmers Bank

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284 S.E.2d 504 (1981)


No. 45.

Supreme Court of North Carolina.

December 1, 1981.

*506 Nye, Mitchell, Jarris & Bugg by Charles B. Nye and Mount, White, King, Hutson, Walker & Carden by Richard M. Hutson, II, Durham, for plaintiff-appellants.

James B. Craven, III, Durham, for defendant-appellee.

HUSKINS, Justice:

The dispositive question posed by this appeal is whether the savings accounts were validly assigned to plaintiffs.

Bank deposits are assignable. Lipe v. Bank, 236 N.C. 328, 72 S.E.2d 759 (1952). When an individual deposits money in a bank account, a debtor-creditor relationship is established between the bank and the depositor. "The debt thus created is subject to the rule that ordinary business contracts for money due or to become due are assignable." Id. at 331, 72 S.E.2d at 761.

Defendant contends that this principle of assignability is subject to contrary agreement by the bank and the original depositor. The Court of Appeals agreed that a depositor cannot assign a bank account when his contract with the bank forbids transfer without the bank's consent. The court further held that the contract between defendant bank and Mr. and Mrs. Roberts did in fact bar assignment without the bank's consent.

The contention that the accounts in this case were not assignable is based upon Rule 11 of defendant's passbook, which provides that: "No assignment or transfer of the Bank Book need be recognized by the Bank unless it consents thereto, and a memorandum thereof entered in said Book." The rule makes no mention of assignability of accounts. Rule 11 is listed in defendant's rules and regulations under the heading "BANKBOOKS." Defendant's rules and regulations have a separate category entitled "DEPOSITS." None of the rules listed under "DEPOSITS" restricts the assignability of deposits or accounts.

A straightforward reading of defendant's rules and regulations impels the conclusion that defendant has restricted the assignment of passbooks, but not accounts. Had defendant wished to restrict assignability of accounts, it could have done so in the same manner it reserved the right to refuse deposits. Rule 7 under "DEPOSITS" states: "The Bank may refuse any deposits and require any depositor to withdraw the whole, or any part of the same, upon 30 days' written notice mailed to the depositor at his or their address as same appears on the signature card; interest to be allowed only to the time of the expiration of such notice." Defendant need only to have included a rule, properly adopted by the board of directors, making assignment of accounts contingent upon the bank's consent. Defendant failed to do so.

The rule restricting the assignment of passbooks does not restrict the assignment of the underlying accounts themselves. The Court of Appeals found the distinction between accounts and passbooks to be "illusory" on grounds that a passbook is worthless other than as a record of the contract between the bank and the depositor. Apparently, no one would want a passbook by itself.

Such reasoning mischaracterizes the transaction at hand. Instead of the assignment of a passbook without an account, this situation involves the assignment of an account without necessarily delivering a passbook. This latter form of transaction, perhaps unlike the former, is not meaningless. A deposit may be validly assigned without the delivery of a passbook. McCabe v. Union Dime Sav. Bank, 150 Misc. 157, 268 N.Y.S. 449 (1934). Mr. and Mrs. Roberts validly assigned their accounts to plaintiffs. The rule restricting assignment of passbooks was immaterial.

*507 The question why parties would agree to the assignment of a passbook without assigning the underlying account is not before this Court. Neither is the question why a bank would wish to prevent such a transfer. Defendant in this case restricted such apparently meaningless transactions. "When the language of a contract is clear and unambiguous, effect must be given to its terms, and the court, under the guise of construction, cannot reject what the parties inserted or insert what the parties elected to omit." Weyerhaeuser Co. v. Light Co., 257 N.C. 717, 719, 127 S.E.2d 539, 541 (1962). Defendant bank itself drafted this contract to become binding upon depositors without negotiation or bargaining on their part. The provisions of such a contract must be construed against the drawer. We will not interpret the purported restriction of assignment of passbooks to apply to assignment of accounts. "Courts do not make contracts.... [T]he law does not permit inquiry as to whether the contract was good or bad, whether it was wise or foolish." Knutton v. Cofield, 273 N.C. 355, 363, 160 S.E.2d 29, 36 (1968).

We hold, as did the trial court, that plaintiffs are entitled to the funds in the two savings accounts at the time of the assignment plus interest as specified in the judgment of the trial court, less the $10,700 offset to cover deficiencies resulting from foreclosure of three home mortgage loans.

The decision of the Court of Appeals is reversed and the case remanded to that court for further remand to Durham Superior Court for reinstatement of the judgment of the trial court.


MEYER, J., concurring in result.

I concur in the result reached by the majority but for reasons different than those expressed by the majority. G.S. § 53-66 provides as follows:

Any bank conducting a savings department may receive deposits on such terms as are authorized by its board of directors and agreed to by its depositors. The board of directors shall prescribe the terms upon which such deposits shall be received and paid out, and a passbook or other evidence of deposit shall be issued to each depositor containing the rules and regulations adopted by the board of directors governing such deposits. By accepting such book or such other evidence of deposit the depositor assents and agrees to the rules and regulations therein contained. (Emphasis added.)

It is clear beyond question that the terms governing deposits, in order to be valid, must be "authorized," "prescribed," and "adopted" by the board of directors. There is not a scintilla of evidence in the record before us that the rules contained in the passbook in question were ever authorized, prescribed or adopted by the board of directors. Two officers or employees of the bank testified that the rules had been in effect for yearsone testifying that they had been in existence since 1948 or 1949. Such evidence in my view is evidence of the long-standing use of such rules and constitutes no showing whatever that the rules were authorized, prescribed or adopted by the board of directors. The Rosensteins demanded that the original books of the board of directors in which the rules and regulations were adopted be produced. They were not offered into evidence and there is no explanation in the record of why the bank could not have produced them, if they in fact existed. Contrary to the opinion of the Court of Appeals, I do not believe that failure to prove the vital fact of the authorization or adoption of the passbook rules by the board of directors was harmless.

Unless the passbook provisions prohibiting the transfer of the accounts without the bank's consent were valid, the transfer of those accounts by the Roberts to the Rosensteins was valid and enforceable against the bank. The bank received notice of the assignment and could have, at that time, taken appropriate action to freeze the accounts until the validity of the disputed assignments was determined. Although the bank notified the Roberts' attorney of its refusal to accept the assignments, it continued to *508 make disbursements from the account to third parties. I believe that the bank acted at its peril in so doing, except for amounts deducted by the bank for collateral on foreclosures that produced deficiencies.

The provisions of G.S. § 53-66 specify in part that by acceptance of the passbook the depositor assents and agrees to the rules and regulations contained therein. I would prefer not to forecast in this opinion that the bank "need only to have included a rule making assignment of accounts contingent upon the bank's consent." The question of the validity of such a provision, properly authorized by the board of directors and properly receipted for by the depositor, when it is but one of many small-print items in a passbook and is not discussed with or brought to the attention of the depositor and not within the contemplation of the parties, should await another day when it is before this Court on fully developed facts and briefed by the parties.

I agree with Judge Hedrick of the Court of Appeals that the evidence supports the critical findings and conclusions made by the trial judge and that his judgment should be affirmed.

CARLTON, J., dissenting.

I respectfully dissent from the majority opinion. Unlike the majority, I cannot accept the argument that the Bank restricted the assignment of passbooks only and did not thereby restrict the assignment of the corresponding accounts. I agree with the Court of Appeals that the distinction between the passbook and the underlying account, with regard to the issue of assignability, is illusory.

The majority makes much of the use of the term "Bank Book" instead of "account" or "deposits" in the Bank regulation restricting assignability and in the placement of that regulation under the heading of "BANK BOOKS." In my opinion, the other rules and regulations printed under "BANK BOOKS" show beyond question that the "Bank Book" is tied to the account and is severable therefrom only in the event the Book is lost or stolen. For example, the Book "must be presented when money is deposited or withdrawn," and the Bank may refuse to enter into any transaction relating to that account if the Book is not presented. Additionally, Rule 12 provides that:

A duplicate pass book will be given the depositor for the amount to his or her credit as appears from the records of the Bank, if said book is lost, destroyed or stolen or mislaid, provided satisfactory indemnity is furnished the Bank to protect it against any claim which may, at any time, be made against it by any person coming into possession of the book first issued. The Bank shall not be responsible for payment to any person producing the Bank Book, if the book be lost or stolen, unless and until written notice thereof shall have been given it.

These rules make clear that the sole function of the Bank Book is to represent the underlying account and that the Book has no inherent value or meaning in and of itself.

I would further argue that the headings used in the RULES AND REGULATIONS are merely illustrative and were not intended to have substantive effect. The Rules are listed consecutively from 1 to 17; each new heading does not begin with Rule 1. This shows that the headings were inserted as a convenient aid to locate rules on a particular subject and not as substantive limitations on the rules themselves. Thus, the placement of the rule restricting assignment under the heading "BANK BOOKS" is of no substantive significance.

A straightforward reading of the rules and regulations leads me to conclude that Rule 11 restricts the assignment of Bank Books and the corresponding accounts. To interpret this Rule as applying only to the Bank Book divorced from the funds in the underlying account is absurd. The Bank Book, in and of itself, has no inherent value to assign. Although the majority is correct in stating that an account may be validly assigned without the delivery of a passbook, citing McCabe v. Union Dime Savings Bank, 150 Misc. 157, 268 N.Y.S. 449 (1934), *509 that case goes on to say that validity of the assignment must be determined by considering whether the failure to produce the passbook is excusable. This question is not the same as the one confronting us here. The question here is whether a provision restricting assignment of the passbook extends to the funds represented by the book. In my opinion, it does. The function of a passbook is to act as a memorandum of the account. As such, it represents the underlying funds. A provision restricting the transfer of the item which represents the funds, in my opinion, extends to the funds represented.

EXUM, J., joins in this dissenting opinion.