Guignon v. First National Bank, 22 Mont. 140

22 Mont. 140 | Mont. | 1899

BRANTLY, C. J.

The defendants assign as error that the' facts found will not support the judgment. The plaintiff insists that he should be allowed interest.

It will be seen from the statement of facts that the relations of principal and agent was established between the plaintiff and the National Bank by the transaction between them on-August 8, 1,896. The draft was deposited with directions to-collect and notify plaintiff, and not for credit. Though the-plaintiff at that time had an open account with the bank subject to check, this fact is of no weight in view of the specific directions given by him. Furthermore, the record does not. show that the defendant bank ever gave notice to the plaintiff,, or credited him with the amount of the collection. In oureview of this case, the mere act of crediting the amount to the-plaintiff upon the books of the defendant bank would not, change the relation of the bank to plaintiff from that of agent, to that of debtor until it had actually received the money from the London'bank. The plaintiff could still pursue the funds, in the hands of the latter so long as he could identify them. The title to the draft did not pass to the National Bank. We-conclude also that the fact that its office was that of a mere-collecting agent was communicated to its subagent in London,, because we must presume, in the absence of proof to the contrary, that it obeyed its instructions, and transmitted the draft, for collection as plaintiff’s agent. The subagent bank must, therefore have understood the nature of the transaction upon receipt .of the draft. The right of the plaintiff to have its-claim paid as a preferential one out of th©-. fund- collected by the receiver from the London -bank therefore depends upon whether the facts in the case show that the £400 collected by the London bank so far retained its identity that it is traceable to the hands of the receiver. No money was remitted to the National Bank by the London bank. Therefore the duties of the latter were not fully discharged up to the time the former closed its doors. The London bank could only receive .cash in payment of the draft, and it could only discharge its duty by remitting the cash collected to the National Bank. ( Ward v. Smith, 7 Wall. 452; Levi v. Nat. Bank of Missouri, 5 Dill. 104, Fed. Cas. No. 8,289; First Nat. Bank v. First Nat. Bank, 76 Ind. 561; Henderson v. O'Conor, 106 Cal. 385, 39 Pac. 786; 2 Morse on Banks and Banking, Sec. 568; Evansville Bank v. German-American Bank, 155 U. S. 556, 15 Sup. Ct. 221.)

It is true that if the National Bank had been indebted to the London bank at the time the collection was made, and credit had been given by the latter to the former in settlement of this indebtedness before the former closed its doors, this would have been equivalent to a transmission of the funds to the National Bank. It would also have been a complete conversion of the money. (Bank of Pa. v. Armstrong, 148 U. S. 50, 13 Sup. Ct. 533; Evansville Banke v. German-American Bank, 155 U. S. 556, 15 Sup. Ct. 221; National Exchange Bank of Dallas v. Beal, 50 Fed. 355; 3 Am. and Eng. Ency. Law (2d Ed.) 818.) But this was not the condition of things in this case. The National Bank was not indebted to the London bank at the time of the collection of the draft. It did not become so indebted at any time afterwards. The collection was made on August 21st, and credited. The National Bank received notice on September 2d, and charged the London bank with it. The National Bank closed its doors on September 4th. At this time there was charged to the London bank £475 14s. 4d., or its equivalent in American money, less two drafts, amounting to $38.60, drawn and credited three or four days before that date. On October 26, 1896, the London bank paid the receiver the full amount of this credit, because it had not paid the two drafts. Therefore there must have been a continuous balance upon the books of the London bank from August 21st until it was collected by the receiver of $475 14s. 4d.; for it does not appear that any other draft was drawn by either bank upon the other, or that any collection was made by either and charged or credited after August 21st. It therefore appears that the balance in the hands of the London bank must necessarily have been made up of the amount of the collection upon plaintiff’s draft with other money theretofore collected. The burden rests upon the plaintiff to establish his claim. (Bank v. Austin, 48 Fed. 25; Nonotuck Silk Co. v. Flanders (Wis.), 58 N. W. 383; 5 Thompson on Corporations, Sec. 7104.) In 2 Pomeroy on Equity Jurisprudence, Sec. 1058, the rule is stated:

“No change in the form of the trust property, effected by the trustee, will impede the rights of the beneficial owner to reach it and to compel its transfer, provided it can be identified as a distinct fund, and is not so mingled up with other moneys or property that it can no longer be specifically separated. * * * The existence of a constructive trust, as of a resulting one, must be proved by clear, unequivocal evidence. ’ ’

The facts found by the court below show that the plaintiff had successfully met the obligation cast upon him to show that his property, as a specific fund, passed into the hands of the receiver. The receiver has in his hands the money'thus belonging to the plaintiff.

The court below rendered judgment for the full amount of the sum collected, but allowed no interest. This we think correct. We have no statutory provision strictly applicable to such cases, and we think it inequitable that the assets in the hands of the receiver to which the general creditors must resort should be taken to pay interest on the sum so withheld by the receiver until he could be- advised as to his duty in the premises. The discretion of the lower court was wisely exercised in this particular, and we shall not interfere.

The judgment will therefore be affirmed. Affirmed.

Hunt and Pigott, JJ., concur. PER CURIAM.

After the foregoing opinion was handed down, the Court, not being fully satisfied as to the conclusion reached touching the question of interest, of its own motion suggested to counsel that an application be made for a rehearing upon this question. The remittitur was ordered withheld pending the action of counsel upon this suggestion. Subsequently the Court was advised that a settlement of the case had been reached, and that no rehearing would be applied for. The conclusions reached will therefore be allowed to stand.