122 Kan. 483 | Kan. | 1927
The opinion of the court was delivered by
This is an appeal from a judgment against a plaintiff who sought to have a demand against the receiver of an insolvent bank, at Cunningham, declared a preferred claim, as constituting a trust fund.
The plaintiff, the Massey-Harris Harvester Company, of Kansas City, in July, 1925, sent a note to the bank for collection. About August 15 the bank collected $3,184 on the note and reported the fact, asking what to do with the proceeds. The plaintiff answered by wire directing a draft to be sent. This was not done, but on
We think the plaintiff was entitled to no preference over general creditors of the bank. After the bank had made the collection of the note we may assume the relation between the plaintiff and it was that of principal and agent and not creditor and debtor; and that if the bank had been closed while that condition existed the plaintiff would have been entitled to reclaim the money as its own. But when the plaintiff by its representative, having the opportunity to receive in cash the proceeds of the note, chose instead to accept a cashier's check — doubtless for convenience in transmission — it voluntarily placed itself in the attitude of an ordinary depositor. The situation is substantially the same as though the money had been paid over the counter and the plaintiff had then used it to purchase the cashier’s check.'
Where the holder of a check presented it to the bank on which it was drawn and upon his request was given for it a draft on another bank, which was refused payment because the bank drawing it failed before its presentation, a preference was claimed as in this case. The court said:
“The transaction was the ordinary one of the purchase of a draft for convenience in the remitting of money, and the giving to it of a different name cannot alter its essential character. In a stipulation regarding the .facts upon*485 ■which, together with the plaintiff’s evidence, the case was submitted, it was stated that the plaintiff was at no time a creditor of the failed bank, but this statement cannot overcome the effect of the specific facts admitted and shown, if inconsistent with them. It must be interpreted as meaning either that the plaintiff was not a creditor of the bank, except so far as that relation was created by the facts already recited in detail, or as a mere conclusion of law, to be disregarded by the court if found to be incorrect.” (Clark v. Bank, 72 Kan. 1, 2, 82 Pac. 582.)
In another case it was said:
“In this ease the Chetopa State Bank was the holder of checks drawn by various individuals upon the Farmers & Merchants State Bank. It presented these checks at the time of clearing for payment. It was in the same situation as though it had taken the checks direct to the Farmers & Merchants State Bank and there purchased a draft for them, or in the same situation as though it had purchased a draft from the Farmers & Merchants State Bank for cash.
The great weight of authority is that under such circumstances the relation of debtor and creditor is created and not that of trustee and cestui que trust. In all, or nearly all, of the cases holding to the contrary some other element enters into it, as that of fraud or fiduciary relationship, which, as we have already seen, are not present in this case.” (State Bank v. State Bank, 114 Kan. 463, 467, 218 Pac. 1,000.)
To meet this line of argument the plaintiff cites a number of cases holding that the acceptance of a cashier’s check by a creditor is not an absolute payment, but merely a conditional payment depending on the payment of the check. In none of these cases, however, is that principle so applied as to warrant a preference over general creditors in such a situation as that here presented. The plaintiff also cities several cases in which language is used to the effect that the giving of a cashier’s check does not change the nature of the debt, but that rule likewise is applied in circumstances quite unlike those here presented, and where the question to be determined was not whether the relation of debtor and creditor resulted.
In view of the conclusion announced we need not consider whether, if the trust character of the deposit were conceded, there was a sufficient showing that the funds in the hands of the receiver were augmented by it.
The judgment is affirmed.