It is thе claim of plaintiff in this case that one Fred A. Engel, her son-in-law, was conducting a small electrical contracting business in Detroit and that it was contemplated that a corporаtion should be organized to take over such business, plaintiff Engel and plaintiff’s nephew, an attorney, Leon H. Hamburger, to be the stockholders. The corporation was to be named Fred A. Engel Company, that being the name under which he was doing business. It is her claim that Engel was then largely indebted to her. It was contemplated that she was to put into the corporation aрproximately $2,000. Leon H. Hamburger, who acted as plaintiff’s attorney in this and other matters, testifies in substance that he explained fully to a Mr. Briggs, an officer of the defendant bank, the situation, told him the money belonged to plaintiff and made an agreement with the bank that plaintiff’s money should be deposited in the name of Fred A. Engel Company, to be paid out only on checks signed by Fred A. Engel and countersigned by him, Hamburger, he and said Engel to be the officers of the contemplated company. The plans to organize
Plaintiff brings this action counting on her claimed contract, and alleging its breach by defendant. Thе case was tried without a jury and findings of facts were filed by the trial judge sustaining plaintiff’s claim. He concluded as matter of law that plaintiff was entitled to recover and judgment followed. Defеndant brings the case here claiming that the findings of facts are against the weight of the evidence and that there are insuperable legal objections to plaintiff’s right to recovеr.
As we have had occasion to point out many times, we are not the triers of the facts in cases on the law side of the court brought to this court for review. If we are satisfied that the findings of the trial judge are against the clear weight of the evidence, we are authorized to reverse under section 12587, 3 Comp. Laws 1915. But we do not hear law cases de novo. An examination оf this record convinces us that we should not disturb the findings of fact. Upon the question of what the contract between the parties actually was the preponderance of the evidence is clearly with the plaintiff. Mr. Hamburger, who acted as plaintiff’s attorney in the transaction, sustains her claim. Another witness who was present when the
This brings us to the legal objections urged by defеndant’s counsel to the plaintiff’s right to recover. Upon the main question in the case counsel for both parties fully consider the case of Davis v. Savings Bank,
“The contract of a depositor with his banker does not differ in any material way from any other contract, whereby one person becomes bound to take charge of and repay another’s funds. As between banker and depositor, there can be no doubt that the bank will be protected in paying out money in such way and on such terms as the depositor has authorized. And, on the other hand, where a contract is not in writing, it is equally clear that its real character and tеrms may be made out by testimony, and that the contracting party can lawfully control his own funds until he has disposed of them and that it can make no difference in what name the account is kept, if it is understood to be his account, and has not been put beyond his control by some act which he cannot revoke.
“In the present case the testimony does not tend to show thаt the bank ever contracted with anybody but plaintiff, or received funds on this account which were not his funds. The case he made out, and which the jury must have found true, was that, while deposited in the wife’s name, it was not intended to be for her benefit, or to be beyond the husband’s right to withdraw. Any idea of a, gift to her was clearly negatived. Her name was only another form for his name, and so аgreed. The bank-book is no contract, and is only one of the means of indicating the state of the funds. Whatever presumptions may arise from it, and whatever protection may be given to acts innocently done on that presumption, it cannot exclude explanatory evidence. The contract was made with plaintiff,_ and with no one else, and the bank is answеrable to him to fulfill that contract.”
This case is absolutely controlling of the one before us. Plaintiff under the facts as found by the trial judge deposited her money in defendant bank
It is also insisted that plaintiff can not recover because Fred A. Engel Company was not made a party. This likewise is answered by the Davis Case, where it was said:
“The suggestion that the estate of Mrs. Davis is not represented in the cause has no forсe. In every action at law upon a contract the contest must be between the two alleged contracting parties, and if the contract and its breach are made оut, the prevailing party must have judgment. The case is in our opinion, a very plain one.”
Defendant’s counsel also contend that plaintiff can not recover because she wаs doing business under an assumed name within the meaning of the statutes, citing Act No. 101, Pub. Acts 1907 (2 Comp. Laws 1915, § 6349 et seq.), as amended by Act No. 263, Pub. Acts 1919, and Act No. 164, Pub. Acts 1913 (2 Comp. Laws 1915, § 6354 et seq.). A complete answer to this contention will be found in the facts. Plaintiff, acting through her attorney, in her own name made a contract with defendant for the deposit of her own funds in the bank to be withdrawn only on certain conditions. The statute did nоt prohibit her from contracting in her own name. Rossello v. Trella,
What we have just said disposes .of defendant’s contention that the failure of the parties to organize the company made them in law a partnership and Engel and Leon H. Hamburger should be joined as plaintiffs. Defendant dealt and contracted alone with plaintiff. It breached its contract with her, and to her alone must it respond.
The judgment will be affirmed.