28 S.W. 63 | Tex. App. | 1894
In June, 1893, appellee sent to the Texas National Bank a note for collection and remittance, which, amounting to $825.33, was collected by the bank on or about July 29, 1893, and not remitted. The money was mingled with the general funds of the bank, and when appellant became receiver of the bank, more than that amount was on hand in the vaults, and came into the hands of the receiver.
Prior to October 1, 1893, appellee filed his claim therefor with the receiver, without indicating therein any right or claim to a preference, and the same was thus classified and acted on.
It appears that on November 20th the Comptroller of the Currency made an assessment of $78 on the par value of each share of the stock, the claim of the appellee being considered in making the assessment; that the assessment levied was sufficient, if collected on all the stock, to pay all creditors in full; but the principal stockholder had proved to be insolvent, and for that reason creditors would not be paid in full.
On November 29, 1893, appellee filed this suit, claiming that by reason of the attitude of the bank to him in the collection of the note, and the disposition of the proceeds as above shown, he was entitled to be paid in full out of the assets in the receiver's hands. That this was his right originally is not questioned by appellant. The receiver brings this case to us, with the contention that appellee has lost his right to a preference, and is estopped from claiming as a special creditor, by reason of his action in proving up his claim before the receiver and allowing himself to be considered as a general creditor until after the assessment had been levied on each share of stock.
There is nothing in the national banking act that would debar a creditor holding a claim entitled to preferred payment from asserting his preference after presenting his claim as a general one. If such act is to bind him, as is contended here, it must be by reasons of estoppel, and in order for an estoppel to exist, it must appear that his action has led to a condition of things which would cause other creditors to lose some right if he is now admitted to a preference. That after the insolvency of a stockholder, the other creditors would receive a less pro rata payment by reason of appellee being paid in full, is clear. But it must be remembered, that appellee was entitled from the nature of his claim to a priority over these creditors. They had no right to be paid except out of assets that remained after he was satisfied. The assessment made by the Comptroller would have been the same had appellee's claim figured as preferred, for it appears that the assessment made by this officer was sufficient to pay appellee and all the other *427 creditors in full. Therefore, it is clear that appellee's act in presenting his claim as a general one did not induce an insufficient provision for the other creditors.
The hardship that is entailed on the general creditors results altogether from the insolvency of a stockholder, an event not attributable in any way to the manner of propounding appellee's claim, and which, if known to the Comptroller, would not have authorized a larger assessment. United States ex rel. Knox,
Affirmed.
