Wallace v. Stone

McGrath, C. J.

On the 26th day of January, 1893, Mrs. Glasier deposited with the defendant bank $261, and took a certificate of deposit for $65, and a cashier’s check for $196. On February 7, 1893, a bank at Oklahoma sent to, defendant bank a note and mortgage executed by Mrs. Glasier, and payable to Julia Wallace, of Oklahoma, with instructions to collect and remit the interest due, and any portion of the principal which the mortgagor might wish to pay. On February lá, 1893, Mrs. Glasier called at the bank, surrendered the certificate of deposit and’ the cashier's check and a tax receipt, and made-payment of $196 of interest, and $100 of principal,, on the aforesaid note and mortgage, and received receipts therefor, signed “Julia Wallace, by Nelson Bradley, Cashier,” etc. The amounts were afterwards-, indorsed on the note. Some correspondence was had between the bank and Julia Wallace writh reference to the reception of the tax receipt, and the matter was delayed. Mrs. Wallace finally consented to a credit for the taxes paid, but, before the bank forwarded the money, the bank suspended, and went into the hands of a receiver. Mrs. Wallace now files her petition, claiming that the bank received the said moneys in trust for her, and *192 that she should have preference over general creditors. The court below granted the prayer of her petition, and the matter comes here on appeal. The petitioner made proof of claim, and received a dividend.

The first question presented is one of fact, viz.: Did Mrs. G-lasier, on the 1.4th day of February, obtain from the bank the currency upon the certificates, and pay the same over to the bank? She stated to her sister her business at the bank,- and requested her to go with Mr. Dolan, a, justice of the peace, and herself, to the bank. It is evident that she went to the bank before the other parties reached there. Her sister testifies as follows:

“I telephoned over to Mr. Dolan, and asked if she was .there, and he said she was, and I went over there to meet her, but she had gone out, and gone to the baulc; and I went up to the bank, and Mr. Dolan and myself were both there. Mr. Dolan counted over the money, and it was paid, and she received a receipt from Mr. Bradley, the ■cashier, and asked him if that amount was indorsed on the mortgage, and he said it was, and gave her a receipt for the amount.”

Again, when asked on cross-examination if she saw her pay over the money, she says:

“I saw her; yes, sir. Saw her pay bills. I think Mr. Dolan counted over the money, and I remember some remark being made about the monej', that he counted over the money, and, I think, handed it to her, or else he stood right by her, and handed it to Mr. Bradley.”

Mr. Dolan says that he thinks she paid over the currency to Bradley, but he is not so positive. Mr. Bradley says that he does not recollect whether she made the payment by a surrender of the certificates simply, or by first -obtaining the money upon the certificates, and then paying the currency to him. One of the bank clerks testifies - that, if the deposit certificate had been cashed, it would have been marked ¿‘Paid” upon the certificate register. Another clerk says that, if it had been paid, the cash wmuld not have balanced, and that, from an examination *193 of the books, it appears that the cash balanced on that day. This is the only testimony that tends in any respect to contradict the positive testimony of the two persons present at the time. It is not shown what entry or that any entry of the transaction was made upon the books, and the fact that the certificate and check were stamped “Paid” upon that day negatives the theory that the certificate and check were simply placed with the mortgage, and laid aside to await the result of correspondence as to the tax receipt. It follows that, unless the relation of debtor and creditor was created between the bank and petitioner, the case is ruled by In re Johnson, 103 Mich. 109.

The rule laid own by Morse, Banks, § 567, that, when a bank acts as agent for the collection of bills or notes deposited, the property does not pass from the depositor, is fully supported by the authorities there cited. “When, however,” says the author, “the money is collected and credited, it becomes a general deposit, unless the instructións are to collect and remit, and then, there being no authority to credit, the bank acts as agent throughout.” People v. Bank of Dansville, 39 Hun, 187; People v. City Bank of Rochester, 96 N. Y. 32; Libby v. Hopkins, 104 U. S. 303; Peak v. Ellicott, 30 Kan. 156; McLeod v. Evans, 66 Wis. 401. In Marine Bank v. Fulton Bank, 2 Wall. 252, the notes had been sent on for collection, and afterwards, and before collection, the sender wrote instructing the bank to “hold the avails subject to my order.” In Phœnix Bank v. Risley, 111 U. S. 125, the banks were correspondents, and, as such, had open accounts. There is a class of cases which hold that if the bank has mingled the deposit with its other moneys, so that they are indistinguishable, the cestui que trust cannot follow the fund into the hands of an assignee in bankruptcy, but must take the position of a general creditor. Illinois Trust & Savings Bank v. Smith, 21 Blatchf. 275. These cases are, however, opposed to the rule laid down in the Johnson case.

*194 The question as to the effect of the receipt of the dividend is, we think, disposed of by McLeod v. Evans, supra. As is there said, petitioner has only received a portion of what was her due. The rights of no one have been prejudiced. No one has changed his position or lost any advantage which the law gave him in consequence of what the petitioner did.

The decree is affirmed, with costs to petitioner.

Long and Grant, JJ., concurred with McGrath, G. .T.