This is a companion case to Ornbaun v. First National Bankof Cloverdale, (Sac. No. 4547) ante, p. 72 [8 P.2d 470], this day decided. In the instant case the deceased had on deposit, at the time of his death, with defendant bank in a savings account the sum of $550. This sum the respondent has demanded in the form and manner provided by law. The appellant bank has refused to pay the same to respondent unless the pass-book is produced, or, in lieu thereof, until respondent indemnifies the bank against any loss that the bank may incur by reason of such payment. The by-laws of the bank involved in this action, which were subscribed to by decedent, provided at the time of the initial deposit and now provide that all moneys deposited and withdrawn shall be entered in a pass-book to be kept by the depositor; that "no money will be paid by the bank without the presentation of the pass-book *Page 771 and the receipt or order of the person in whose name the account has been opened". In the pass-book was printed the statement "This book is not negotiable, do not check against your account". The respondent has diligently searched for the pass-book, but has been unable to find the same. The appellant has never received, directly or indirectly, any notice that the account was assigned by the deceased prior to his death.

[1] The legal situation presented by the instant case can in no way be differentiated from the legal situation involved inOrnbaun v. First National Bank of Cloverdale, supra. It would serve no useful purpose to repeat in this decision what was there said. For the reasons advanced in that case and upon the authority thereof the judgment appealed from is affirmed.