Foote, J. (dissenting):
I agree with Mr. Justice Robson’s construction of the statute that the legal effect of the deposit made in the statutory form is, in the absence of evidence of the contrary intent, to vest title to the deposit in the parties as joint owners. I think it is competent for the. parties to have a different agreement between themselves, notwithstanding the form of the deposit, and that the agreement would control as to the ownership in spite of the statute; in other words, that the intent of the statute is to define the ownership, in the absence of an agreement to the contrary. Whether plaintiff in this case was entitled to give evidence of oral statements of Mrs. Pike and Lamphere, made after the deposit, to show a different agreement or understanding as to ownership than that evidenced by the form of the deposit, depends, I think, on whether the paper writing signed by Mrs. Pike and Lamphere and left with the bank is held to be a written contract between these parties. Oral evidence cannot, of course, be received in behalf of the parties or their privies to vary the terms of a written contract. If the statute means what Mr. Justice Robson holds it to mean, then this writing, declaring the intention of the parties to make this deposit pursuant to the terms of this statute, shows an intention and agreement that there shall be a joint ownership of the deposit; but the writing purports to be only a declaration of Mrs. Pike as to her intention. Still it is also signed by Lamphere. It does not express a consideration, but is in the nature of an agreement to make a gift, consummated by the actual deposit in the bank. While the question is not free from difficulty, I am inclined to think that the writing should be construed as a "written contract between Mrs. Pike and Lamphere; and *940if so, the trial judge was right in excluding the offer to prove that either party to this writing had made statements or declarations afterward showing a different intention or agreement than that embodied in the writing. Accordingly I dissent from the opinion for reversal. Kruse, J., concurred.
Judgment reversed and new trial granted, with costs to appellant to abide event. Held, that it was error to exclude the offered evidence. See opinion of Robson, J., in case of Clary v. Fitzgerald {ante, p. 659), handed down this day. All concurred, except Kruse and Foote, JJ., who dissented in a memorandum by Foote, J.