18 Ohio App. 193 | Ohio Ct. App. | 1923
The action below was by the Casualty Company to recover from the National Bank the sum of $1,874, together with interest thereon, from the 14th day of March, 1919. The issues being
The agreed statement of facts reads as follows:
1. The Knox County order given by Green & Gettman to the Cashier of the defendant bank was for the final estimate on the road improvement contract of said Green & Gettman.
2. The plaintiff was surety on the bond of Green & Gettman for the performance of said contract.
3. That the material furnished by Coe & Buck-master, which was the basis of their suit against the Maryland Casualty Company, was used in the construction of such road improvement.
And the further facts important to a proper understanding of this issue are:
On or about the 5th day of December, 1917, Green & Gettman, contractors, completed a section of a state highway in Knox county, this state, and there was then due them on the final estimate for the completion of the work the sum of $4,933.81. At that time Green & Gettman were indebted to the defendant bank in the sum of $3,737.34, as evidenced by six promissory notes and an overdraft of $105.97, as set out in the answer, which notes were due at that time. On the above date the cashier of the bank went to Knox county for the purpose of collecting the sum due from the
Thereafter, on the 7th day of August, 1920, the Casualty Company brought an action in the Court of Common Pleas of this county against the defendant in error bank for the purpose of recovering the amount paid by the company to Coe & Buckmaster in satisfaction of the judgment in Knox county.
It is urged here that the Casualty Company was / not only subrogated to the rights of Coe & Buck- /
When Coe & Buekmaster furnished material for tbe construction of tbe highway in question, if not paid tbe amount due them, they would have been entitled to perfect a material man’s lien against the same under favor of Sections 8376 to 8379, General Code, or probably under Section 8324 et seq., General Code, and to enforce tbe same upon tbe failure of Green & Gettman to pay for such materials; but if it be contended that no statutory lien could attach by reason of it being a “public contract,” then bow much less would it be possible to effectuate a lien without statutory authority. However, apart from tbe common-law liens of artisans and vendors, dependent upon possession, liens must rest in Ohio on clear statutory grounds, as they are creatures of statute, and this principle is sustained in the very well-considered case, In re Estate of Clark, 195 Pa., 520, 48 L. R. A., 587, decided by the Supreme Court of Pennsylvania. Practically to tbe same effect is the bolding in Ohio, Seebaum v. Handy, 46 Ohio St., 560, 567, and in In re Citizens Bank, 2 W. L. M., 121, 2 Dec. Rep., 230.
Therefore, being simply and only material men, it is clear that if Coe & Buekmaster desired to perfect a lien to protect their claim, it would be necessary to conform to tbe statutory requirements, and it is conceded that they did not do so. Evidently the Knox county judgment is tbe basis of this action, and, if so, tbe Casualty Company has
However, as above stated, it is insisted that in any event the Casualty Company was entitled to an equitable lien in the instant case because of its relation of surety to Green & Gettman, and as sustaining this view the case of Columbia Digger Co. v. Sparks, 227 Fed., 780, is cited. A careful examination of this case, however, discloses that quite a different issue was involved, which was determined upon the matter of the application of payments where the Digger Company received more money than the amount of a secured claim, applied it on an unsecured claim, and then brought suit against the surety for the amount of the secured claim. It was very properly held that it could not recover under such circumstances; that though the Digger Company might under certain circumstances elect as to the application of payments, it could not do so to the prejudice of a surety as to a fund arising from a contract upon which the surety was bound; that to do so would be wholly inequitable.
Such, however, is not the instant case, and while
“1. Money received by a bank on general deposit becomes the property of the bank, and its relation to the depositor is that of debtor, and not of bailee or trustee of the money.
“2. The check of such depositor for part of the sum due him, is not an assignment pro tanto, without acceptance by the bank.
“3. Where, at the time such check is drawn,*199 or is presented, the drawer is indebted to the bank on past dne paper, it may treat the cross demands existing between them as compensated so far as they equal each other, and credit the demands accordingly; and, if there is not then sufficient balance standing to the credit of the drawer, payment of the check may be refused for want of funds.”
It becomes readily apparent that the rights of the Casualty Company cannot rise any higher than the rights of Coe & Buekmaster, whose claim it satisfied, and therefore subrogation will not aid the claim of plaintiff in error.
It has been well said that the doctrine of sub-1 rogation rests generally upon the principle that! one who for the purpose of protecting his own interests pays the debt or liability of another is entitled to and may enforce all the liens and securities of the party to whom he pays: 1 Brandt on Suretyship (3 ed.), Section 260; Eddy v. Leath, Admr., 16 O. C. D., 645, affirmed 74 Ohio St., 462.
He who asks subrogation must work out his 1 equities through those of the party to whose equities he seeks to be subrogated, and can have no equitv if such party has no equity. 37 Cyc., 430; 38 L. R. A., 152, 154.
A surety paying the debt of his principal can ¡; acquire no greater rights than the creditor had at the time of payment; can acquire no priority of lien which the creditor did not have. 37 Cyc., 429, 430; Jackson Co. v. Boylston Mut. Ins. Co., 52 Am. Rep., 728; Hill v. King, Exr., 48 Ohio St., 75.
Nor does the case of Crane Co. v. Pacific Heat & Power Co., 36 Wash., 95, 78 Pac., 460, upon au
I The conclusion must be, therefore, that since the Casualty Company has no equitable lien under the circumstances of the instant case it has no right of action against the defendant bank. In view of the foregoing it follows that the judgment is not contrary to law, and it is therefore affirmed.
Judgment affirmed.