5 Indian Terr. 202 | Ct. App. Ind. Terr. | 1904
Appellant makes the third and last assignment of error in his motion for new trial as his specification of error
We have examined with care the opinion in Bank vs Yardley, 165 U. S. 634, 17 Sup. Ct. 439, 41 L. Ed. 855. In the Yardley Case the Fourth Street National Bank advanced $25,000 to the Keystone National Bank to enable it to meet its debtor balance in a Philadelphia clearing house. The president of the latter bank'represented to the officials of the Fourth Street Bank that his bank owed a balance at the clearing house, which it could not meet, because its funds were in the city of New York, and exhibited a memorandum showing a balance to the credit of the Keystone National Bank in the Tradesman's National Bank of New York, of about $27,000, stating that his bank wished to draw against it and get clearing house certificates, and asked the Fourth Street Bank to accept the draft of the Keystone Bank for $25,000 against this reserve account in the New York bank. Relying upon these representations and statements, supported by the memorandum that the Keystone Bank had in the New York bank the specified fund against which it proposed to draw, the Fourth Street Bank gave to the president of the Keystone Bank, for its present use, clearing house gold certificates to the amount of $25,000, and took its draft. The books of the Keystone Bank show that on March 19, 1891, it had to its credit in the Tradesman’s Bank of New York the sum of $26,907.32, and on that day an entry was made in said books charging against that credit the said draft of $25,000 it had given to the Fourth Street National Bank. This draft for $25,000 was forwarded to New York for collection, and- presented for payment to the Tradesman’s National Bank on the morning of March 20, 1891. Payment thereof was refused upon the ground that the drawee had not in hand funds of the drawer sufficient to pay the same. In fact, the Tradesman’s Bank had in cash and collection items
It may be well, in this connection, to examine the circumstances of the giving of the check. John O’Mealy testified in the case as follows: “Q. Do you recollect of giving a check
The bank’s statement of the account of John S. O’Mealy, manager, is as follows:
Account Current.
*214 J. S. O’Mealy, Mgr., with the First National Bank of Ardmore, Ind. Ter. '
, Report promptly on your monthly account, in order that errors, if any, may be rectified.
1899. 1899.'
Jany 9 Balance overdraft $ 21 22 Jany 12 375 00
14 ! 5 14 200
14 200 20 100
16 5 21 135
17 -17 80
21 134 10
23 79 42
27 Balance (red ink) 347 46
810 810
This statement shows that on the 12th day of January, 1899, there was a credit to the depositor of the' difference between 1375 and $21.22, an overdraft existing on January 19, 1899. It shows that on the 14th day of January, 1899, there was a further deposit of $200 and two checks paid to the amount of one of $200 and the other of $5; that on the 16th of January another check of $5 was paid; that on the 17th day of January another check of $17.80 was given and paid; that on the 20th of January a deposit of $100 was made; that on the 21st of January a deposit of $135 was made, and on. that day two checks were given — one for $134.10, and the second for $79.42; and that on the 27th day of January, a balance was due the depositor of $347.46, which had so remained from the 23d day of January. It would seem from the evidence that the check given to the interpleader by the Ardmore Stock Exchange, or by J. S. O’Mealy, manager of W. D. Peak & Co., was upon,a general account on deposit in the First National Bank of Ardmore; that between the time of the giving of the check to the interpleader and the presentation of the check some 14 days had elapsed, during which
It is our opinion that the case at bar presents an altogether different question from the question so ably decided in the Fourt Street Bank vs Yardley, supra, or any of the cases cited in the opinion of said court. It is certainly true that at any time during the two weeks intervening between the delivery of the check to the intervener and its presentment that O’Mealy could have checked against this fund, and his check been honored; and in fact the testimony shows that he did cheek against his account in said bank during this time. It is a general rule of law that a check is not intended for acceptance, but for prompt presentment and payment; and it is the further rule that the check must be presented within a reasonable time after receiving it. Benjamine’s Chalmer’s Dig. arts. 256, 257. In the Yardley Case the payee bank forwarded the check made immediately upon its receipt for payment. In the case at bar the intervener, by his own statement, allowed 14 days to elapse before presenting his check for payment, and only presented said check for payment upon learning of the impending failure of the maker thereof, and after an attachment had been run against the general
An examination of the authorities shows that there is considerable conflict in the decisions, even where no attaching
Upon the whole, a careful examination of the various decisions of the different courts upon this question of what constitutes an equitable assignment of the funds of a depositor in a bank, where the depositor has given a check on such fund, we are forced to the conclusion that before a cheek on such funds would become an equitable assignment thereof, in a ease where attaching creditors have reached such funds, one of three things must appear: First, the check must, on its face, show the intention to appropriate the fund on deposit; or, second, the depository bank must have had notice in some way of the drawing of such check; or, third, the check must have been made against a particular fund on deposit, and for the whole of such fund— neither of which conditions appear in the evidence or in the findings of fact by the court in the case at bar. We are of the opinion that, where a party has a check in ordinary form on general funds in bank, it is his duty to present such check within a reasonable time, and if, before presentation of his cheek, a
The judgment of the court was erroneous in adjudging that the intervener was entitled to the money on deposit in the garnishee bank, and in directing said bank to pay said money to the intervener, and that the plaintiff (appellant) recover nothing of the garnishee and interpleader, and awarding judgment for costs against appellant in the garnishment proceedings. The judgment of the court below is reversed and remanded, with directions to proceed in a regular manner with the case in accordance with the views herein expressed. Reversed and remanded.