61 P. 868 | Kan. Ct. App. | 1900
The opinion of the court was delivered by
This proceeding is commenced in this court to procure a reversal of the judgment of the district court of Marion county, refusing to direct the receiver of the First State Bank of Marion, Kan., to pay to the plaintiff in error its claim against said First State Bank as a trust fund.
The plaintiff in error was the owner of a check for
The main question for our consideration is whether the proceeds of the check became a trust fund and passed into the hands of the receiver impressed with the trust. The First State Bank received the check for collection, and it was clearly its duty to present the check to the Bank of Commerce and demand the payment thereof, and, if payment had been made, to remit the amount to the Kansas City bank; and if payment had been refused to protest the same for nonpayment. The relation between the parties was that of principal and agent, and not of debtor and creditor. Neither the Bank of Commerce nor the Kansas City bank Willingly became the creditor of the First State Bank. The First State Bank wrongfully paid its own debts with the check instead of demanding the money. Applying the doctrine laid down in Peak v. Ellicott, Assignee, 30 Kan. 156, 1 Pac. 499; Myers v. Board of Education, 51 Kan. 87, 32 Pac. 658; Hubbard v. Irrigating Co., 53 Kan. 637, 36 Pac. 1053, 37 Pac. 625, the estate is liable for the payment of this claim as a
Tlio j uugment of the district court is affirmed.