33 A.2d 459 | Pa. Super. Ct. | 1943
Argued May 5, 1943. This is an appeal by plaintiff from an order sustaining defendant's affidavit of defense raising questions of law. The action is in trespass. The court was of opinion that the statement of claim did not set forth a good cause of action.
The statement alleges that plaintiff, on January 6, 1941, deposited in defendant-bank $1,700 "in the name of her husband, Frank Uzarski, or herself, Cecelia Uzarski"; that she received a pass book which, at the present time, shows a deposit liability of $1,747.21; that the money so deposited consisted of her individual earnings and moneys belonging to her separate estate in which her husband had no interest; that her husband has been inducted into the U.S. Army and has left her without adequate funds to support her children and herself; that she gave written notice entitling her to withdraw the fund on September 16, 1942; and that, in spite of the fact that she has notified the defendant that the moneys on deposit in the account belong exclusively to her and that she is in urgent need of the funds, the bank has refused, in violation of its contract, to permit her to withdraw them. She further alleges that as a result of the refusal of the defendant to pay the deposit she "has suffered great damages; she has been without funds to take care of the needs of herself and her children; she has been greatly inconvenienced and embarrassed; and she has had to employ counsel to advise her and to bring this action to compel the payment of the money standing in her account and due and owing to her as aforesaid." She asked damages in the sum of $2,500.
We agree with the court below that appellant has not made out a good cause of action in trespass.
Although the breach of a contract may give rise to *435
an action in trespass (Hoehle v. Allegheny Heating Co.,
Although plaintiff has not sufficiently alleged a trespass, we might be inclined to disregard the form of the action, as we did in Nock v. Coca Cola Bottling Co.,
Plaintiff created an estate by entireties even though the money deposited belonged exclusively to her (Blick v. Cockins,
In the absence of notice by one of the parties not to pay, the bank may voluntarily pay the whole amount to either and discharge its liability. Madden v. Gosztonyi Savings Tr. Co., supra. But whatever the reason for the refusal of payment, the legal incidents of the estate by entireties which plaintiff voluntarily created require that the action be maintained in the joint names of husband and wife. Magee v. Morton B. L. Assn.,
The order is affirmed, and, since the statute of limitations has not run, leave is granted plaintiff to amend the cause of action and add the husband as party plaintiff within fifteen days. *437