45 F.2d 458 | 5th Cir. | 1930
The appellant, the receiver of the First National Bank of Lake Worth, Fla. (herein referred to as the bank), claimed of the appellee the amount of an overdraft which was created in the way indicated below. At the opening of business on Saturday, March 12, 1927, the balance in the bank to the credit of appellee was $107.49. During the forenoon of that day the appellee deposited in the bank four checks, one for $17,000, drawn on a bank located at Chattanooga, Tenn., and payable to the order of the appellee, and the other three for amounts aggregating $229.97. The appellee then drew a check against her account in the bank for the sum of $6,500 payable to the order of her kinsman, J. E. Bunker, at whose request, when he presented that cheek for payment, the sum of $6,000 was credited to his account in the bank and $500 to the account of Mrs. Iona Bunker. The. cashier of the bank stated in his testimony : “That it was against the rules of the Bank to allow out of town checks to be drawn on until they had been cleared, but that he as cashier was authorized to vary this rule, and that his reason for varying it was that he knew Nellie M. Bunker to be financially responsible, and had known her for a number of years.” The above-mentioned cheek for $17,000 was protested for nonpayment and came to the hands of appellant as part of the assets of the bank. By reason of the nonpayment of the $17,000 cheek, the condition of the appellee’s account with the bank was so changed that, instead of there being a balance to her credit, the account showed that she owed the bank or its receiver $6,293.70. On the above-mentioned date the bank closed its doors for business at noon, its usual Saturday closing time. It did not open on the following Monday, and then was in charge of a National Bank Examiner. The receiver was appointed on April 2, 1927. The appellant’s declaration contained the allegation that the bank “became insolvent March 12, 1927.” Upon the conclusion of the evidence the appellant moved for a directed verdict in his favor. The court denied that motion. The bill of exceptions recites:
“The Court then of its own motion directed a verdict for the defendant in the following language:
“Gentlemen of the Jury: In this ease the action by the Plaintiff is that the bank was insolvent. If the bank was insolvent at the time when those transactions occurred with 'the bank then the Plaintiff cannot maintain this cause of action, because the bank is an insolvent institution, and had no right to receive this money and the whole transaction was void. In the Declaration in this ease the Plaintiff says the bank was insolvent on the 12th day of March, 1927, when this money was deposited, and the transactions took place. That being the fact -as being admitted by the Plaintiff in the ease and it is a fact in this case, and that being what you are to find by the evidence, and there being no other evidence to the contrary, the Court instructs you in this ease to find a verdict for the Defendant.”
It is not material to determine whether the allegation of the declaration that the bank “became insolvent March 12, 1927,” was or was not enough to show that the ac
Reversed.