79 W. Va. 763 | W. Va. | 1917
The alleged vice in the decree appealed from, is its denial of the plaintiffs’ claim of right to preference of the debt due them, in the distribution of the assets of an insolvent bank, on any of the four grounds asserted as bases of the claim, namely, (1) insolvency of the bank, on the date of the deposit; (2) fraud on the part of the cashier in receiving the deposit Avith knowledge of the insolvency of ,the bank; (3) non-collection of the check deposited, before closure of the bank; and (4) the character of the deposit, the plaintiff claiming it to have .been special.
There is but little controversy as to the facts. At about twenty minutes before noon of May 14, 1915, the plaintiffs deposited in the Bank of Ravenswood, their certified check for $750.00, drawn on the First National Bank of Parkers-burg, in favor of a member of their firm, and, at the same time, obtained a certified check from the Bank of Ravens-wood for $576.35, drawn by themselves, in favor of the Town of Ravenswood, and, on the next day, May 15, 1915, at about
The sufficiency of the bill making the receiver, the commissioner of banking and one James M. "Wease, another depositor claiming a right of preference, parties defendant, was challenged by demurrer, on four separate grounds: (1) misjoinder of the commissioner of banking; (2) institution of the suit against the receiver, without the consent of the commissioner of banking; (3) non-joinder of the creditors and depositors of the bank; and, (4), disclosure on the face of the bill, of the receiver’s admission of the bank’s indebtedness to the plaintiffs in the amount claimed.
None of these positions are well taken. If the commisisoner of banking is an improper party, it would have been the duty of the court to dismiss the bill as to him, on his separate demurrer thereto; but the general and joint demurrer of all of the defendants did not reach such an objection.
The statute, sec. 81a VIII, ch. 54, Code of 1913, ser. sec.
The third ground of demurrer involves an erroneous assumption respecting the relation of general creditors to the assets of the bank. They are not interested in the subject matter of the suit, within the meaning of the equity rule requiring all interested persons to be made parties. They have
Right of recovery on the ground of the admitted non-collection of the check deposited, before the bank was closed, and the theory of a relation of agency on the part of the bank, for collection of the check, at the date of the failure, and termination of that agency and authority, by the failure, is opposed by the contention that the deposit made in the ordinary form and the certification of the check drawn against it, legally and necessarily passed the title of the check deposited, and, therefore, created the relation of debtor and creditor between the depositor and the bank. Assuming insufficiency of the evidence to prove any contract or agreement other than that imposed by the entries made, without deciding it, and conceding effectuation of an assignment of the instrument deposited, the relation of debtor and creditor is not necessarily established by the transaction. Some authorities hold that it is. Bank v. Fuel Company, 58 Minn. 141; Brusegaard
Plaintiffs had power to restore the status quo and did so. They returned the check drawn on the insolvent bank. Indeed, it was drawn for a temporary purpose and with no intention that it should ever be paid. One of the plaintiffs says it would have been returned on the day of its issue and the whole transaction with the bank then terminated, but for an accident, and that failure of the bank on the next day prevented the settlement.
The right of recovery asserted here is unembarrassed by the difficulty usually found in efforts to recover money collected by the bank, before it closed. In that class of cases, it is sometimes impossible for the depositor to prove the presence of his money in the bank at the date of the failure, and, in order to recover, he must do that. Michie, Banking, p. 1428; Bolles, Modern Law, Banking, pp. 188, 193. That the money represented by the check deposited by the plaintiffs was collected after the bank had failed, and went into the assets in the hands of the receiver, are admitted facts. Right of recovery does not depend upon the plaintiffs’ ability to prove possession of the identical money collected. It is only necessary to show that the money went into the hands of the receiver, or was in the bank when it closed. That being done, there may be a judgment or decree for an equivalent sum.
No element of waiver or estoppel is found in the acceptance of the dividend. Though the receipt given therefor makes no express reservation of right, it refers to the claim the plaintiffs had filed, and it was filed as a preferred claim. The right of preference was insisted upon strenuously, from the beginning. As plaintiffs were entitled to payment of their claim in full, acceptance of a partial payment manifestly injured no one. Importers and Traders Bank v. Peters, 123 N. Y. 272.
As the plaintiffs are entitled to the relief they seek, • on the ground here indicated, there is no occasion to say whether any of the other grounds therefor, alleged in the bill, are well founded or not. ,
In so far as the decree complained of denies the plaintiffs right of preference in the distribution of the assets of the bank and confines them to a pro rata share thereof, and awards costs to the defendants, it will be reversed, and it will be here adjudged, ordered and decreed that the receiver pay to them, out of the funds remaining in his hands as such, the sum of $609.27, with interest thereon from the. 29th day of June, 1916, the date of the decree appealed from, together with their costs in the court below as well as in this court.
Reversed in part, and decree for plaintiff.