11 A.2d 60 | N.J. | 1940
This appeal brings up a decree of the court of chancery impressing a trust upon funds in the hands of the defendant in favor of complainant and ordering that complainant be given a preference over other creditors of the defendant, a closed bank being liquidated by the Commissioner of Banking and Insurance.
In October, 1938, complainant, being indebted to the bank in the sum of $790, delivered as collateral security for the loan one hundred shares of stock of Yellow Truck and Cab Co. He delivered also a written order directing the bank to sell the stock when its price on the exchange reached $21 per share and to "pay the loan in full, with interest, and hold the balance until called for by myself." In November, 1938, he delivered an additional one hundred shares of this stock with a written order to sell at $21 and "hold proceeds until called for by myself." *2
The orders to sell were executed on January 3d 1939, and the net proceeds of the sale were $4,161.81, which after deducting the loan and interest left a balance of $3,362.25. A treasurer's check for that amount, dated January 5th, 1939, was issued and was held by the bank along with the other papers relating to the transaction until complainant should call for it. He was in Florida and returned to this state in early February. Four days after his return and before he called at the bank, the Commissioner of Banking and Insurance took charge of the defendant for liquidation. The check was then mailed to complainant and his demand for payment was refused.
The court below held that a trust had been established and further that the Bank Collection code (R.S. 7:6-1 et seq.) applied to the situation because there was an "item" entrusted to the bank for collection.
The appellant bank urges that, under the rule of Acuntius v.Steneck Trust Co.,
However, we are of the opinion that the controlling principle is that laid down in this court in Maurello v. Broadway Bankand Trust Co.,
Having reached this conclusion, we deem it unnecessary to consider the other ground relied upon in the court below and are not to be understood as expressing any opinion on the applicability of R.S. 7:6-1 et seq. to a factual situation such as the one presented here.
The decree is affirmed.
For affirmance — TRENCHARD, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, JJ. 13.
For reversal — None. *4