dissenting. I do not believe that R.C. 1101.08(F) acts as a time bar here, since this case is neither solely “based on” records which need be retained for only six years, nor does its determination “depend upon” such records.
It has been held that “the relationship between a bank and a general depositor is that of debtor and creditor.” Speroff v. First-Central Trust Co. (1948), 149 Ohio St. 415, 37 O.O. 98, 79 N.E. 2d 119, paragraph one of the syllabus. As was stated in People v. Jenkins (1978), 61 App. Div. 2d 705, 708, 403 N.Y. Supp. 2d 751, 753: “A depositor is a creditor of the bank and the passbook issued to the depositor is evidence of the debt and the contract between them (Myers v. Albany Sav. Bank, 270 App. Div. 466, affd. 296 N.Y. 562) * *
“The term ‘deposit,’ when used in connection with a banking transaction, denotes a contractual relationship ensuing from the delivery, by one known as the ‘depositor,’ of moneys, funds, or things into the possession of the bank, which receives the same upon the agreement to pay, repay, or return, upon the order or demand of the depositor, the moneys, funds, or equivalent amount, of things received * * *.” 10 American Jurisprudence 2d (1963) 299, Banks, Section 337. The remedy of a general depositor may sound in contract on the theory that the bank receives the deposit upon an agreement to repay it on demand or order. Id. at Section 449.
R.C. 1101.08(F) is limited to actions which are “based on, or the determination of which would depend upon, the contents of records for which a period of retention or preservation is set forth in divisions (A) and (B) of this section. * * *”(Emphasis.added.)Here appellant put forth sufficient evidence which supported her assertion that she did not close her account and that appellee breached its contract by refusing to repay her deposited funds on demand. Her action is thus not solely based on or dependent upon records *179which the bank may have destroyed in reliance on R.C. 1101.08(F).
The record discloses no affirmative evidence that appellant’s account had been closed. Appellee can only infer that the account had been closed because appellant’s account number did not appear on a January 4,1977 list of open accounts. Appellant’s passbook, on the other hand, evidences that the account has not been closed and there has been no activity in the account since September 30, 1972.
Appellant also points out that her passbook contains the statement, “This book must be presented when money is deposited or withdrawn. * * *” It has been held that “[t]he reasonable rules and regulations adopted by a savings bank and printed in its pass book, signed and agreed to by a depositor, form a contract between the bank and the depositor, and each is bound thereby unless such rules and regulations are contrary to .some positive rule of law or are against public policy.” Fourth & Central Trust Co. v. Rowe (1930), 122 Ohio St. 1, 170 N.E. 439, at paragraph two of the syllabus. However, it also must be noted that Rule 9 of the bank’s Rules and. Regulations Governing Royal Passbook Accounts states: “* * * For Bank’s protection, no person shall have the right to make a withdrawal without presenting the Passbook and giving a receipt, if requested, for the amount withdrawn but Bank, in its absolute discretion, may permit a withdrawal by depositor without presentment of the Passbook. * * *” According to the deposition of bank official, John Szucs, it appears that withdrawals without a passbook were not “normal bank practice,” and would be allowed only upon insistence of customers who, for various reasons, did not have their passbooks with them, or upon court order.
Appellant testified that her passbook had been misplaced from 1972 to 1985, and she had not withdrawn funds from it during that time. She also stated that no one else had authority to withdraw funds from this account or even knew about the account.
Although I agree that banking institutions need some limit on record retention, I cannot agree with the majority that R.C. 1101.08(F) bars all actions against a bank involving destroyed records after a mere six years. Appellee can only guess as to why appellant’s account did not appear on its January 4, 1977 list of open accounts. While evidence such as this list may tend to support appellee’s contention that appellant’s account was closed prior to January 1977, I do not believe that this evidence alone is sufficient to completely bar appellant’s claim.
Appellee admitted that it was possible that appellant’s account may have been mistakenly debited without appellant being aware of such an error. Further, there was evidence in the record that this account had not escheated to the state. Appellant, an immigrant woman, averred that she never received notice of the various mergers and name changes of the bank. To bar appellant, under these circumstances, from bringing an action against appellee is unjust. This is especially true when her action is neither “based on” nor “dependent upon” allegedly destroyed bank records, but instead is based on an alleged breach of a written contract that existed between her, a depositor, and appellee, a bank.
The court of appeals, in ruling on this case, relied on the decision of Brown v. National City Bank (Feb. 14, 1980), Cuyahoga App. No. 40394, unreported. As the dissent in the court below correctly pointed out, the facts *180in the instant case are distinguishable from those in Brown, supra. In Brown, plaintiffs, as executors of an estate, attempted to obtain the funds shown to have been deposited in the decedent’s passbook savings account. In holding for the bank, the appellate court in Brown noted that aside from the passbook, plaintiffs put forth no other evidence which would tend to rebut the presumption that the account had been closed.
Such is not the case here. As noted above, appellant has proferred sufficient evidence, in addition to the presentation of her passbook, that she did not withdraw funds from or close out her account. Thus I believe that the evidence appellant put forth is sufficient to rebut appellee’s contention that her account must have been closed prior to 1977. Cf. Owens v. Bank of Brewton (1974), 53 Ala. App. 529, 302 So. 2d 114.
In conclusion, I would hold that R.C. 2305.06, not R.C. 1101.08(F), controls under these circumstances. Appellant contends that appellee refused to repay appellant’s deposited funds on demand on December 19, 1985. Generally, “the statute of limitations does not begin to run against the right of a depositor in a bank to maintain an action against the bank to recover a general deposit until there has been a demand for payment, * * * and a refusal to pay.” 10 American Jurisprudence 2d, supra, at 424, Section 453. See First City Trust & Savings Bank v. Doolittle (1930), 36 Ohio App. 218, 221, 222, 173 N.E. 19, 20. Thus, appellant’s action, filed May 28, 1986, was filed timely for purpose of R.C. 2305.06.
I would reiterate that the six-year bar has no place here; instead, the fifteen-year limitation for actions sounding in written contract applies. Appellant brought her action timely, and I would, therefore, reverse the appellate court.
Douglas, J., concurs in the foregoing dissenting opinion.