[21 NJSuper Page 134] This matter is before the court on a stipulation of facts which reveals that on November 21, 1946, the plaintiff, Elizabeth C. Forbes, and Clifford H. Forbes, her husband, deposited with the defendant, First Camden National Bank and Trust Company, the sum of $2,000 in joint savings account No. 36723. At that time they signed the signature card, a photostatic copy of which is attached hereto and made a part hereof, and had issued to them a savings account passbook. Photostatic copies of the pertinent
pages of this passbook are also attached hereto and made a part hereof. Thereafter between November 21, 1946 and November 7, 1947, withdrawals were made from said account by the said Clifford H. Forbes totalling $1,600 and the defendant admits that the said Clifford H. Forbes at no time presented the original passbook in making these withdrawals.
On November 7, 1947, the plaintiff, Elizabeth C. Forbes, withdrew the balance remaining in the account, together with accrued interest. All of the withdrawals of the said Clifford H. Forbes and the said Elizabeth C. Forbes are reflected on the account card of the defendant, a photostatic copy of which is attached hereto.
Plaintiff alleges that the payments made to said Clifford H. Forbes without presentation of the passbook were made in direct contravention of the contract between the plaintiff and the defendant, and that the passbook was at all times in the possession of the plaintiff. Defendant alleges that the payments were made in good faith on the exercise of due care in accordance with Regulation D of the Federal Reserve Board and without any affirmative notice from the plaintiff or from any other person not to pay the said funds to the said Clifford H. Forbes.
The plaintiff did not notify the defendant in writing that the payments to Clifford H. Forbes were improperly made until July 26, 1951, although such payments were entered in the passbook November 7, 1947.
The relationship in law thus established was one of debtor and creditor with the rights and liabilities of the parties determined by the provisions, express or implied, of the contract between them. This is not only the general view but has been, from the earliest judicial consideration, the law in this State. Shippers v. Kempkes , 67 A. 1042, affirmed 72 N.J. Eq. 948 (E. & A. 1907). There the Court of Errors and Appeals adopted the language of the vice-chancellor below in an opinion delivered orally from the bench, in which the following appears:
"The transaction between a depositor and a bank is often very incorrectly described. It is really a loan of money. It is not a deposit at all. The bank does not receive the money on the deposit, in the strict legal sense of the term. The bank borrows the money, becomes the owner of the money, and becomes charged with a contractual obligation to repay an equal amount of money at a future time in accordance with the terms of the banker's contract."
In this instance the terms of the contract are expressed in the signature card which incorporates by reference the rules and regulations of the depository bank. These rules with respect to withdrawals provide that any part or all of the savings deposit may be withdrawn upon the presentation of the passbook and the signing of a withdrawal receipt. In addition to the rule itself prescribing the method of withdrawals, an appended writing appears in bold type under the heading "Important Notice" the following words:
"No payment will be made unless the check or order thereof is accompanied by the passbook of the withdrawing depositor."
Some effect is also argued for the last of the savings account rules which states that they are subject to change so as to conform to the regulations of the Federal Reserve Board. This body has established as a regulation of savings ...