ON APPLICATION FOR REHEARING
Decided May 20, 1938
By THE COURTThere has been forwarded to us a memorandum designated as in support of application for rehearing. We also have motion for new trial and motion for rehearing, both of which are very short. The motion for new trial does not state any ground whatever under the statute as is required if a motion for new trial is necessary. The memorandum is directed to the application for rehearing as would properly be required.
We have examined the questions urged. It is suggested that the court should reopen the case and take further testimony, then re-submit the whole case to the court. There is no affidavit appended to either motion setting forth what the evidence which it is desired to produce would disclose, nor is there anything in the brief other than1 a mere statement of conclusion of what the evidence would consist. At the bottom of page 2 in the application it is stated that counsel do not think it necessary to cite authorities to show that deception is not to be presumed; that a person is bound by written signature and that a subscription to stock in a building and loan is bound by the constitution and by-laws of the association. We subscribe to every proposition in this sentence and affirmatively so held in our opinion.
It is asserted that the decision is emphatically contrary to Kroeger, Supt. of Building & Loan Assns., v Brody, Trustee, 130 Oh St 559 and Herman v Wagner, Supt., No. 1411 Montgomery County, this court. Air examination of the Brody case discloses that the defense of the superintendent of Building & Loan Associations was that the president of the loan association with whom the plaintiff had made deposits had no authority to accept such deposits but as upon a stock subscription account. That was the very basis of the defense and the ground upon which the Supreme Court decided the case. In the instant case at no time has there been any suggestion that .at the time the plaintiff deposited her funds with the savings association the officers of said association were not authorized to accept the deposits as distinguished from payment on subscription to stock. We have also examined Herman v Wagner, supra, and find nothing therein which in any wise conflicts with that which is said in the majority opinion in the instant case.
Of course we are not bound by the fact that there may be variation between our decision in this case and certain opinions in other cases in the Common Pleas Court of Montgomery County.
We are not committed to the proposition that in no instance will we after decision reopen a case and take further testimony. Such procedure, however, should only be adopted in exceptional cases and upon clear showing that the testimony which will be forthcoming if a new trial is granted will be of such probative effect as if true would in probability require a different determination of the cause. No such situation appears in the application for rehearing.
On the matter of deceit and the proof upon the record we would call attention to our opinion at the bottom of page 11 and page 12 wherein we say:
“It is not a part of the plaintiff’s case to prove that any officer of the company acted in bad faith or with any intent to defraud the plaintiff in what was done. It clearly appears that the company believed that it was authorized to transfer all of plaintiff’s deposit account upon her subscription for ten shares of running-stock. It is also evident that without the benefit of defendant’s interpretation of the by-laws there is nothing of record which discloses that the plaintiff instructed the association to transfer all of the money in her deposit account to a stock account.”
At the bottom of page 13 and 14,
“We might again state that if there was nothing- in this record but the books of the association there might well arise a presumption that the transfer there appearing was regular, or if it appeared or ■was claimed that this plaintiff had given - any oral instructions at the time of the transfer of her deposit account to a running stock account, then, of course, the as*483soeiation would find support for the transfer. Upon the whole record it is highly probable that the transaction between the parties is found in the written evidence made up of the subscription of the plaintiff for ten shares of stock and the receipt-which she signed on the stub of the check that was issued. This situation, then, makes determination of the rights of the parties rest upon a construction of the rules and by-laws, by the authority oí whjph the association insists that it had the right to transfer all of plaintiff’s deposit account to a running stock account.”
We then consider and discuss the meaning of the by-laws of the association, particularly §18 thereof, and hold against the interpretation put upon this section by defendanis-appellees. This clearly was the determinative question in the case in in our view of the issues.
We are of the opinion that our former decision is correct. The application for rehearing and the motion for new trial will be overruled.
HOf&NBECK and GEIGER, JJ, concur.