
    The Tatra Savings & Loan Co. v. Jakubcin et al.
    (No. 25566
    Decided April 15, 1936.)
    
      Messrs. Bernon, Mulligan & Keeley, for plaintiff in error.
    
      Messrs. Feldmcm & Feldman, for defendants in error.
   This cause came on to be heard upon the transcript of the record of the Court of Appeals of Cuyahoga county, and was argued by counsel.

Prior to January 23, 1934, the Jakubcins became owners, by assignment, of three savings accounts of three depositors in The Tatra Savings & Loan Company, aggregating $3864, the assignments of the savings accounts appearing on the inside of the back cover of each passbook evidencing the savings accounts. On that date the Jakubcins owed the savings and loan company $3819.20 on a joint note secured by real estate mortgage. The Jakubcins tendered to the savings and loan company the three passbooks, demanded that there be applied so much of the amount due the Jakubcins upon the passbooks as would pay in full the amount due on the mortgage and offered to sign withdrawal receipts or other documents in order to enable the Jakubcins to make such application, but the savings and loan company refused to make such set-off. Thereupon the Jakubcins brought suit in the Court of Common Pleas to require the savings and loan company to make such set-off.

The savings and loan company in its second amended answer pleaded a rule and regulation, contained in the passbook, providing that no assignment or transfer of a passbook or a deposit would be recognized unless the consent of the company was first obtained and a memorandum thereof entered therein; that the savings and loan company never consented to the assignment of the savings accounts to the Jakubcins, and that the accounts stood in the names of the assignors of the passbooks on the books of the savings and loan company. The amended answer also pleaded that the savings and loan company offered to accept a credit on the passbooks up to 50 per cent, of the mortgage indebtedness, and the remaining 50 per cent, in cash, which the Jakubcins refused to accept.

The Court of Common Pleas sustained a demurrer tó the second amended answer, and a like judgment was entered by the Court of Appeals on appeal.

On consideration whereof it is ordered and adjudged that the judgment of the Court of Appeals be, and the same hereby is, reversed on authority of Royon, Admr., v. Greenstein, 122 Ohio St., 340, 171 N. E., 595, and this cause is remanded to the Court of Appeals with direction to overrule the demurrer to the amended answer.

Judgment reversed.

Weygandt, C. J., Stephenson, Jones, Matthias, Day and Zimmerman, JJ., concur.  