DISSENTING OPINION
By BARNES, PJ.It is with regret that I find myself unable to agree with my associates in the determination of this cause. Briefly I shall set forth herein the reasons for this dissent.
As I read the testimony, there is an absolute failure of proof to support plaintiff’s action. It is the plaintiff’s claim that on January 12, 1929, the defendant association wrongfully transferred the full amount of her deposit account to a running stock account.
In her petition she alleges that on this date she subscribed for ten shares of running stock of the face value of $1000.00. In the presentation of evidence it develops that she had no recollection of the transaction whatever. It therefore becomes apparent that the allegations in her petition are based on deductions from the written evidence in the possession of the building and loan association and not from any independent recollection of what transpired, tinder the by-laws of the association, running stock accounts, in any amount, could be added to through additional deposits without any further subscribing and automatically the running stock would be increased by multiples of one hundred dollars and fractions thereof. Just because my associates cannot bring to their minds a satisfactory explanation as to why Miss Schultheis would only subscribe for ten shares if there was an understanding that the entire account was to be transferred cannot bear weight in my judgment. 1 am unable to see that there is any particular reason for signing up a subscription card at all except that it provides a conclusive record as to whether it is a running stock or deposit account. A subscription for ten shares provides a transfer just as effectively as any other amount. The fact remains that the entire account was transferred and since the book was in Miss Schultheis’ hands for a great number of years, she must have known it. Her pass book, taken out in October, 1930, bore the legend on the cover page “Running Stock”. The last entry in this book is July 1, 1933. There is also entered in this book in type under the heading “Dividends” the amount of her semi-annual accumulations.
The evidence discloses that running stock accounts paid larger dividends than deposit accounts. The calculations from the entries in the books will show that plaintiff drew larger rates of dividends following the transfer to running stock accounts.
In the majority opinion it is stated that it is unnecessary to determine fraudulent conduct on the part of the association in making the transfer of the entire deposit to running stock. I am unable to see how they can arrive at a conclusion upon any other basis. If the representative of the association surreptituously. transferred the entire amount to running stock account without having an understanding with Miss Schultheis so to do, this would be fraudulent conduct on their part. Fraud is not presumed.
There are many ways through which the transaction may have been closed thoroughly consistent with the subscription for ten shares. For instance, Miss Schuitheis may have come down to the association with the idea of subscribing for only ten shares, but following her signing the subscription card she may have concluded that she might as well transfer the entire amount. The fact that running stock would bring larger returns may have moved her to so conclude. This procedure would have been in harmony with the procedure authorized under the by-laws.
Miss Schultheis through her petition admits that she, from time to time, made additional deposits to this running stock account without taking out any new subscription.
We must not lose sight of the fact that the burden of proof is upon Miss Schultheis to affirmatively show her right to the relief asked. In my judgment she has not presented any evidence in support of her contention. When she says she has no recollection of subscribing for the ten shares of stock or signing the . check stub as receipt for transfer she thereby fails in her proof. The fact that she signed for ten shares but that the full amount was Transferred would be corroborative if she presented any evidence of substance. It' is *482incorrect to say that because she only signed for ten shares that she might not, at ilie same time, have had a full understanding with the association to make the transfer for the full amount. The fact that the full amount was transferred is indicative that there was such an understanding. The account was in this form for four years or more before the association was taken over by the superintendent. During this period she received the benefits of the added income. It is too late and improper to draw inferences favorable to plaintiff in the absence of any proof.