| Mass. | Jun 29, 1921
The defendant, commissioner of banks of the Commonwealth, on February 17, 1921, took possession of the property and business of the Tremont Trust Company under St. 1910, c. 399, as amended (now G. L. c. 167, §§ 22, 36), and has since retained such possession. Among the assets of its savings department, and held as an investment of the deposits therein, was a note of the Bachrach Lumber Company for $4,000 secured by a first mortgage of its real estate. The note was dated November 15, 1917, payable in two years, and interest thereon had been paid in advance to May 15, 1921. Among the liabilities of the trust company was an account, in its savings department, to the credit of I. Bachrach, the plaintiff, for $5,065. The plaintiff owns all the stock of the Bachrach Lumber Company; and said mortgage note was indorsed by him, waiving demand and notice. He brings this bill to compel the defendant to apply $4,000 of this savings account in payment of said mortgage note.
In ordinary commercial banks the legal relation between the bank and a general depositor is that of debtor and creditor; and where the depositor owes the bank he may set off his deposit against the indebtedness, even though the bank has become insolvent. Demmon v. Boylston Bank, 5 Cush. 194. Colt v. Brown, 12 Gray, 233. National Mahaiwe Bank v. Peck, 127 Mass. 298" court="Mass." date_filed="1879-09-05" href="https://app.midpage.ai/document/national-mahaiwe-bank-v-peck-6419696?utm_source=webapp" opinion_id="6419696">127 Mass. 298. Deposits in the savings department of a Massachusetts trust company have in general the incidents of a deposit in a savings bank. J. S. Lang Engineering Co. v. Commonwealth, 231 Mass. 367" court="Mass." date_filed="1918-11-27" href="https://app.midpage.ai/document/j-s-lang-engineering-co-v-commonwealth-6434566?utm_source=webapp" opinion_id="6434566">231 Mass. 367. They are made “ special ” deposits, and all loans or investments thereof must be made in accordance with the law governing the investment of deposits in savings banks. G. L. c. 172, § 61.
It was enacted by St. 1878, c. 261, that any person indebted to a savings bank in this Commonwealth may, in any proceeding for the collection thereof, set off the amount of his deposit in the bank. North Bridgewater Savings Bank v. Soule, 129 Mass. 528" court="Mass." date_filed="1880-10-22" href="https://app.midpage.ai/document/north-bridgewater-savings-bank-v-soule-6420081?utm_source=webapp" opinion_id="6420081">129 Mass. 528. In later re-enactments this provision was made applicable to “a savings bank and an institution for savings, incorporated as such in the Commonwealth.” G. L. c. 168, §§ 1, 35. But as this statute has not been extended to cover deposits in the savings department of trust companies, it cannot avail the petitioner.
Nor does the statute of set-off afford him relief. The mortgage and note held by the trust company were made by the Bachrach Lumber Company, — which is a separate legal entity from the depositor, Isaac Bachrach, — even though he owned all the capital stock. Brighton Packing Co. v. Butchers Slaughtering & Melting Association, 211 Mass. 398" court="Mass." date_filed="1912-03-01" href="https://app.midpage.ai/document/brighton-packing-co-v-butchers-slaughtering--melting-assn-6431754?utm_source=webapp" opinion_id="6431754">211 Mass. 398, 403. Marsch v. Southern New England Railroad, 230 Mass. 483" court="Mass." date_filed="1918-06-25" href="https://app.midpage.ai/document/marsch-v-southern-new-england-railroad-6434472?utm_source=webapp" opinion_id="6434472">230 Mass. 483, 498. The plaintiff is only secondarily liable on the note, as indorser. Even if he were sued
Bill dismissed.