No. 71 | 5th Cir. | May 22, 1893
The appellant, a corporation, having its chief place of business in the city of St. Louis, Mo., on the 20th of March, 1891, drew its draft for the sum of #793.80, with exchange, on one P. II. Morris, who resided at Eufaula, Ala., and sent the draft to the McNab Bank for “collection and returns.” On the 26th of March, 1891, Morris paid the draft with his check on the McNab Bank. He had at that time about #3,000 to his credit as a depositor in said hank, and there was as much as $10,000 in cash in the vaults of the bank belonging to it. On the same day — the 26 th of March, 1891 — the McNab Bank forwarded to appellant its exchange drawn on the Hanover National Bank
Appellant’s contention is tbat in tbe collection of its draft on Morris tbe McNab Bank acted as its agent and trustee, and tbat it is entitled, as against other creditors of tbe bank, to priority of payment out of tbe bank’s assets; tbat, notwithstanding the money collected from Morris was intermingled with tbe general assets of tbe bank, or was in a common mass with moneys of tbe bank, and cannot be identified or specifically traced into the bands of tbe receiver, yet a court of equity will subtract the amount due appellant from tbe funds in tbe bands of tbe receiver, and will compel him to restore it to appellant, because tbe amount bad been collected by tin' bank as its agent and trustee, and bad increased pro tanto its general assets. And appellant further contends tbat, if not entitled to this relief, it at least has a right to be classed among depositors who bad not stipulated for interest on deposits, these being a class preferred for payment out of the general assets of tbe bank under tbe constitution of tbe state of Alabama. Article 14, § 17.
Tbe relation between appellant and tbe McNab Bank as to tbe draft on Morris sent by the former to tbe latter for collection was tbat of principal and agent; but, in order to enforce a trust in favor of appellant as to any money collected on said draft, it must be specifically traceable into the bands of tbe receiver. Commercial Nat. Bank v. Armstrong, 39 Fed. Rep. 684; same case in supreme court of the United States, (Oct. term, 1892; not yet officially reported,) 13 Sup. Ct. Rep. 533. Accepting Morris’ check in payment of bis debt to appellant, and charging tbe amount of it on Monis’ account by the bank, was but a shifting of its liability, whereby it became appellant’s debtor, and assumed tbe obligation to pay to it tbe amount of tbe check less exchange. There is nothing to indicate that this amount was separated and kept unmingled with the bank’s own money; but, on tbe contrary, it is conceded
Was appellant a depositor who was entitled to preference of payment over all other creditors? “A hank depositor is one who delivers to or leaves with a hank money subject to bis order.” And. Law Dict. 343, 344; New mark, Bank Deposits, § 12. Deposits made with hankers are either general or special. In the case of a special deposit of money the bank merely assumes the charge or control of it, without authority to use it, and the depositor is entitled to receive hack the identical money deposited. 1 Morse, Banks, § 183. The relation thus created is that of bailor and bailee. Money received by a bank on general deposit becomes the property of the bank, and can he used by it as other moneys belonging to it, the relation between the hank and the depositor being that of debtor and creditor; “that kind of deposit of money peculiar to banking business, in which the depositor, for his own convenience, parts with the title to bis money, and loans it to the banker.” Commercial Nat. Bank v. Armstrong, supra; Wray v. Insurance Co., 34 Ala. 58" court="Ala." date_filed="1859-01-15" href="https://app.midpage.ai/document/wray-v-tuskegee-insurance-6506453?utm_source=webapp" opinion_id="6506453">34 Ala. 58; Alston v. State, 92 Ala. 124" court="Ala." date_filed="1890-11-15" href="https://app.midpage.ai/document/alston-v-state-6514234?utm_source=webapp" opinion_id="6514234">92 Ala. 124, 9 South. Rep. 732.
The contention of the learned counsel for appellant is that his case meets this definition of a general depositor. We cannot agree with this contention. Appellant did not leave its money with the McNab Bank subject to its order, or to be returned to it on call. It did not, for its own convenience, part with the title to its money, and loan it to the bank. There was no contract, express or implied, that the collection from Morris on appellant’s account was to be a, deposit of any kind, but it is clear that it was intended that the money received from Morris should he remitted in “a reasonable time” from date of collection. Appellant inclosed its draft on Morris to the McNab Bank “for collection and returns.” Morris took up the draft with his check on the McNab Bank, and on the same day the latter forwarded to appellant exchange on a New