
    HASTINGS v. HUGO NAT. BANK.
    No. 9916
    Opinion Filed April 12, 1921.
    (Syllabus.)
    1. Pleading — Lack of Verification — Motion to Strike.
    Where a petition is based upon a written instrument, and the answer is unverified, a motion to strike is a proper procedure for reaching the defect.
    2. Same — Necessity of Verification — Statute.
    Section 4759, Rev. Laws 1910, provides: “In all actions, allegations of the execution of written instruments and indorsements thereon, of the existence of a corporation or partnership, or of any appointment of authority, or the correctness of any account duly verified by the affidavit of the party, his agent or attorney, shall he taken as true unless the denial of the same be verified. * * *”
    a. Same — Unverified General Denial — Scope of Admission.
    Under the above section a general denial unverified admits the execution of an instrument, but admits only its execution and whatever legal effect the instrument itself may have. It does not admit any matter extraneous to the instrument itself.
    b. Same.
    In an action upon a written instrument a general denial puts in issue all allegations in the petition which are extraneous to the written instrument itself and likewise puts in issue all allegations in the answer, which if denied would constitute a defense to the legal effect of the instrument itself.
    3. Evidence — Parol Evidence — Deposit Slips.
    A deposit slip issued by a Bank is but prima facie evidence that the bank received the amount of the deposit on the date shown by the slip. It has no more force and effect than any other form of receipt, and is open to explanation as to the conditions surrounding the deposit and the circumstances under which it was given may be inquired into.
    4. Banks and Banking — Deposits in Name of Third Persons — Effect.
    Where a deposit is made in the name of a third person, a bank may make payment to such person in the absence of any adverse claim of the actual depositor or another. The actual depositor has a right to demand payment from the bank if the money deposited was his own and he did not intend to transfer the ownership to the person in whose name the deposit was made.
    5. Pleading — Action on Written Instrument —Unverified Answer — Demurrer.
    Where an action is based upon a written instrument and where an answer, though not verified, alleges facts which constitute a defense to the legal effect of the instrument, it is not error to overrule the demurrer to the answer for the reason that the execution of the instrument is not denied under oath.
    6. Same — Overruling Demurrer and Motion for Judgment on Pleadings — Judgment.
    Where an action is based upon a written instrument and the answer contains facts sufficient to constitute a defense to such instrument, and plaintiff’s demurrer being overruled, he refuses to plead further but elects to stand on demurrer, and motion for judgment on the pleadings, it is not error to overrule motion for judgment in favor of plaintiff, but is proper for the trial court in such cases to render judgment in favor of defendant.
    Error from District Court, Ohoetaw County; Jesse M. Hatchett, Judge.
    Action by Mrs. J. 8. Hastings against the Hugo National Bank to recover on bank deposit slip. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    I. L. Strange, for plaintiff in error.
    Willis & Works, for defendant in error.
   HARRISON, C. J.

This cause is here on a transcript of the record. It was a suit on a bank deposit slip. Plaintiff in error, Mrs. J. S. Hastings, bad a deposit slip showing that $10,000 bad been deposited for ber in tbe Hugo National Bank by ber husband, J. S. Hastings, in October, 1907. In November, 1916, she brought this suit against tbe bank for $10,000. In tbe meantime tbe money bad all been checked out.

Tbe facts as they appear in - the pleadings are: On October 19, 1907, J. S. Hastings, husband of plaintiff in error, bad approximately $10,000 on deposit in tbe Hugo National Bank. On said date be and bis wife were in tbe bank and he requested tbe bank to temporarily carry $10,000 in bis wife’s name. The request appears to have been verbal merely, and not by check or written order. Upon such request the bank charged J. S. Hastings’ account with $10,000.00, and placed said amount to tbe credit of Mrs. J. S. Hastings, and gave her tbe following deposit slip:

Deposited With The Hugo National Bank
By -
For Mrs. J. S. Hastings,
Hugo, Okla., 10/19, 1907.
Please list each cher*c separately.
Currency __
‘Silver _j_1_
Gold _I_
Checks as follows; $10,000.00
Ten Thousand Do ’^rs.
C. G. Shull a/c Total
‘'Exhibit A”

It is alleged in tbe answer of the bank that Mr. Hastings did not mean to part with title to the money, and did not do so, but wished only to temporarily place it in bis wife’s name until after tax assessing time; that a few months thereafter, March, 1908, and after the assessing period bad passed, be requested the bank to transfer tbe amount back to bis own account. This request also was merely oral so far as tbe record discloses. In compliance with same tbe bank transferred tbe deposit to bis account. It does not appear whether any checks were drawn against tbe deposit while in bis wife’s name, but after it bad been credited back to bis account it was all checked out, partly by himself and partly by bis wife. Subsequent to these transactions, but prior to the filing of this suit, there was a mortgage foreclosure suit by tbe 'bank against these same parties. Tbe suit was instituted against Hastings, but, being for foreclosure of a mortgage which she also bad signed, she was made a party thereto. Tbe date of this suit does not appear in tbe pleadings, but during tbe proceedings therein tbe bank was required to render an accounting to Mr. and Mrs. Hastings as to this particular deposit. Tbe materiality of this fact will appear further on.

In 1916, Mrs. J. S. Hastings presented a cheek to tbe Hugo National Bank payable to ber order for $10,000. Tbe bank refused payment for lack of funds, whereupon she instituted this suit against tbe bank for $10,000, basing ber cause of action upon tbe deposit slip above copied. In ber amended petition she alleged that in October, 1907, J. S. Hastings deposited in said bank tbe sum of $10,000 for ber, and that ber account was credited by said bank with tbe sum of $10,-000; that $5,000 of said sum was her own money, originally and individually, and that tbe other $5,000 was a gift from' ber bus-band, J. S. Hastings, and that she was tbe absolute owner of tbe entire sum of $10,000; that she bad drawn no checks against said deposit, and bad drawn out none of said funds. She filed copy of deposit slip as “Exhibit A” to her petition, and as a part thereof. She alleged that she and ber husband bad appeared in the 'bank and in tbe présence of each other had requested tbe bank to place said sum to tbe credit of ber account; that tbe bank bad done so and bad delivered to ber tbe said deposit slip. That in November, 1916, she drew a cheek in favor of herself for $10,000 on said bank, and presented same for payment and payment was refused. Tbe check is also made a part of tbe petition and marked “Exhibit O.” Wherefore, she prayed judgment for $10,000, and interest at 6 per cent, per annum.

Tbe defendant bank answered, and in its amended answer alleged in substance: First, by general denial; and for further answer alleged that in October, 1907, Hastings was a depositor in said bank, and bad been for a period of time prior thereto, and bad carried a deposit of approximately $10,000. That on October 19, 1907, be and bis wife appeared in tbe bank, and in tbe presence of each other be requested tbe bank to charge bis account with $10,000 and credit Mrs. Hastings’ account with said amount; that be said nothing to indicate that be was parting with title and control of bis money, but in substance stated that he was not parting with tbe title to said money, nor putting same beyond bis control, bu,t was placing same to ber account for bis own convenience and accommodation in order that said money might not 'be in bis name when tbe time came for rendering bis property for taxes. That on March 27th thereafter, be requested tbe bank to retrans-fer said sum back to bis own account, and said sum was thereupon charged to Mrs. Hastings’ account and credited to Mr. Hastings’ account; that subsequent thereto said sum bad been checked out, partly by J. 'S. Hastings and partly by Mrs. J. S. Hastings, and that she had thereby ratified and confirmed the transfer of the money. The bank further alleged that each year after' statehood, about the time for the rendering of property for assessment, said J. S. Hastings-similarly transferred his money with the full knowledge of plaintiff, in order that he might not have same in his possession during the assessing period, and that Mrs. J. S. Hastings never rendered said amounts for taxes.

Defendant further alleged that J. S. Hastings so transferred his money as long as he kept deposits with the bank, and that his wife, plaintiff, never undertook to exercise any control over same, and never -acquired or claimed any title thereto.

As a further defense, in the third paragraph of the bank’s answer, it is alleged that in ease No. 2665 in the district court of Choctaw county, the Hugo National Bank was plaintiff, and J. S. Hastings and his wife were defendants, and that in said suit the said J. S. Hastings sued the bank for an accounting as to the deposit of the $10,000 in question, and that said fund was involved in said controversy and judgment ’rendered in favor of the Hugo National Bank, and that said funds having been adjudicated in a suit wherein Mrs. J. S. Hastings was defendant, she is now estopped by the judgment therein rendered.

To the first paragraph of the answer, or to so much thereof as constituted a general denial, the plaintiff, Mrs. Hastings, filed a motion to strike upon the grounds that her suit being based upon a written instrument, a general denial not verified constituted no defense thereto. The motion to strike was overruled and exceptions taken. She thereupon filed a demurrer to paragraphs two and three of the answer for failure to allege a defense to her cause of action. The demurrer was likewise overruled, and she thereupon filed a motion for judgment on the pleadings. The motion for judgment was also overruled. The plaintiff, Mrs. Hastings, declined and refused to plead further, but elected to stand on her demurrer and motion for judgment on the pleadings. And upon her refusal to plead further the court rendered judgment in favor of the defendant bank, and the cause is brought here upon an assignment that the court erred in overruling motion to strike and in overruling demurrer to the second and third paragraphs of the answer and in not sustaining her motion for judgment on the pleaaings.

In support of the assignment that the court erred in overruling the motion to strike, plaintiff in error cites section 4769, Rev. Laws 1910, and argues that:

“A deposit of money in a bank creates the relation of debtor and creditor.”
“That a deposit slip is evidence of indebtedness and is a receipt for the money deposited.”
“It is an implied contract to pay upon demand and a certificate of deposit.” Citing authorites in support of each proposition.

And, assuming that the deposit slip in question came within the meaning of section 4759, Rev. Laws 1910, which provides that the execution of a written instrument shall be taken as true unless denied under oath, she contends that the motion to strike was a proper procedure, citing Doughty v. Hunk, 24 Okla. 312, 103 Pac. 634.

It will be conceded that a motion to strike, in a proper case is a proper procedure, as was held in Doughty v. Funk, supra; but in the same opinion this court said:

“He alleges that ‘he is the owner and holder of said promissory note as receiver.’ This is denied in the answer. In an action on an instrument * * * brought by one other than the endorsee, who alleges that he is the owner thereof, an answer, which alleges that plaintiff is not the owner, puts in issue his title, and that too without being verified as required by said section.” Referring to section 4312, 'Wilson’s Rev. and Ann. Stat. 1903, which is the same as the above section 4759, Rev. Laws 1910, and citing a number of Kansas authorities which squarely support the holdings.

In Grand Lodge, etc., Workmen v. Furman, 6 Okla. 649, 52 Pac. 932, in construing said section this court said:

“This section does not provide that every written instrument set out in a pleading must be denied under oath, but simply that the execution of -such instrument must be denied, or the execution thereof will be admitted.”

The same construction was placed upon said section in Dunn v. Claunch, 15 Okla. 27, 78 Pac. 388, wherein this court held:

“The trial court evidently had in mind the rule that the execution of a written instrument must be denied under oath, but it also overlooked the fact that, admitting the execution of the bond, the general denial states a good defense, in that it denies that the property was ever delivered to Dunn when the bond (the written instrument) was given.”

Many other authorities might be cited wherein this court and the -Supreme Court of Kansas have given the above statutes the same construction, viz.: That a general denial, unverified, admits the execution of an instrument, and admits the legal effect of such instrument, but does not admit any facts extraneous to the instrument itself, and where an affirmative defense is alleged in the answer, such as denial of ownership of an instrument, or denial of ownership of the property referred to in the instrument, or alleges other facts, which if true would destroy the legal purport and effect of such instrument, or which would constitute a defense to its legal purport and effect, such allegations raise an issue distinct from the instrument itself and are not required under said section to be verified.

In the case at bar, the bank denied that the ownership of the funds, referred to in the deposit slip, was in Mrs. Hastings, and alleged that the title to the money was in X S. Hastings, that he had never parted with title, and that plaintiff, Mrs. Hastings, so understood it, and had full knowledge of the reasons why her husband, X S. Hastings, had transferred the account in her name, and further alleged that she had never attempted to exercise any control over said funds.

These allegations raised an issue of fact in addition to the question of the execution of the written instrument, • and under the above authorities such issues of fact are not required to be denied under oath; therefore the court did not err in overruling the motion to strike.

And the other proposition, viz., that a deposit slip is an implied contract to pay upon demand, etc., does not apply to the circumstances of this ease, nor are the authorities cited in support of said proposition applicable to the state of facts in the case at bar.

The next question is whether the court erred in overruling the demurrer to paragraphs 2 and 3 of- the answer.

In support of the contention that the court erred in overruling^the demurrer, plaintiff in error submits that paragraph 2 was an affirmative defense, in that the bank alleged title to the money to be in X S. Hastings, instead of the plaintiff, and, in support of the proposition that the deposit slip was prima facie obligation of the bank to pay and the further proposition that the law presumes a deposit to belong to the person in whose name it is entered, cites a great number of authorities. Though we do not question the correctness of any of these authorities, as to their application to the issues to which they were respectively applied, we cannot admit their application to the issues in this case.

In American Home Life Insurance Oo. v. Citizens State Bank, 66 Oklahoma, 168 Pac. 437, this court held:

“A deposit slip, executed by a bank and delivered to a depositor, is not a written contract in which all oral negotiations and stipulations are merged, but it is merely a receipt, constituting prima facie evidence that the bank received the sum stated at that time, which may be explained or contradicted by parol evidence.” Citing Talcott v. Bank (Kan.) 36 Pac. 1066; Bank v. Clark (N. Y.) 32 N. E. 38, 17 L. R. A. 580; 3 R. C. L. 531 and 571.

Also, in American National Bank v. Punk, 68 Oklahoma, 172 Pac. 1078, this court held:

“A deposit slip issued by a bank is but prima facie evidence that the bank received the amount of the deposit on the date shown by the deposit slip. It has the same force and effect as that of any other form of receipt, and is open to explanation as to the conditions surrounding the deposit, and the circumstances under which it was given may be inquired into”

—citing a number of authorities -which fully support the holding, among which is Tiffany on Banks and Banking, par. 15, page 42, wherein it is said:

“Where a deposit is made in the name of a third person, the bank must make payment to such person, in the absence of *any adverse claim by the actual depositor or another. The actual depositor has a right to demand payment from the bank if the money deposited was his own, and he did not intend to transfer the beneficial ownership of the deposit to the person in whose name it was made.”

This doctrine applies fittingly to the allegations in the ease at bar.

The allegations in the answer that the title to the money was in X S. Hastings and that he had never parted with title to same, and that Mrs. Hastings had no title to same, and that she had knowledge of the purpose of the transfer, and that she never assumed to exercise any control over same during the nine years from October, 1907, to November, 1916, except to check out said funds after it had been transferred from her account to his account, and the allegation that all of said funds had been withdrawn upon checks of X S. Hastings and Mrs. J. S. Hastings, and that no funds belonging to either of them were in the bank, constituted a defense to her right of recovery on me deposit slip, unless denied; therefore, the court did not err in overruling the demurrer as to paragraph 2 of the answer, nor err in refusing to render judgment upon the pleadings in favor of plaintiff, Mrs. X S. Hastings.

' As to whether the allegations in paragraph 3 were sufficient to constitute estoppel by former judgment, it is unnecessary to decide, inasmuch as the allegations in paragraph 2, being undenied and being confessed on demurrer, were sufficient to constitute a defense against the deposit slip.

Upon her refusal to plead further, the court was correct in rendering judgment in favor of the bank.

The judgment is affirmed.

All the Justices concur, except KANE, J., not participating.  