196 Iowa 729 | Iowa | 1923
The North Liberty Savings Bank of North Liberty, Ioiva, was closed on August 20, 1921, by order of the state banking department, and on August 31st, H. D. Evans was appointed receiver, upon the application of ~W. J. Murray, superintendent of banking, for the purpose of preserving its assets and winding up its affairs. Notes of the savings bank were frequently discounted to the First National Bank of Norway, Iowa. It was the custom for the national bank, either upon its own motion or at the request of the savings bank, to forward
The bank claims a right to have its claim established and paid as a preferred claim, upon the theory that the relation between the two banks, so far as this transaction is concerned, was that of principal and agent, and that, immediately upon the payment. of the note to the savings bank, as agent, a trust arose in favor of the national bank, as principal, for the amount of the note. If nothing more appeared in the record, this would undoubtedly be true. Jones v. Chesebrough, 105 Iowa 303; Bradley v. Chesebrough, 111 Iowa 126; Hanson v. Roush, 139 Iowa 58; Page County v. Rose, 130 Iowa 296; Messenger v. Carroll Tr. & Sav. Bank, 193 Iowa 608.
This controversy does not, however, end with the admission of the matters stated. The receiver claims that it was the custom of the savings bank to issue certificates of deposit to the national bank for sums collected by the savings bank upon notes sent to it by the national bank for collection, and of the national bank to permit the same to remain on deposit therein until required by it, and that, because of this custom, the simple rola
The further contention is made by appellant that the certificate of deposit issued by the savings bank was delivered to the president or vice president of the national bank, some time between the 10th and 20th of August, 1921, and retained by the bank as such, and that thereby the deposit of the proceeds of the note in the savings bank and the issuance of a certificate of deposit therefor were fully ratified and confirmed by appellee, and that it is now estopped from claiming that the money was held by the bank in trust and from having a preference established. Appellant also contends that the money paid to the bank by Kadera was dissipated and lost long before August 31st, and that no part of it ever came into the hands of the receiver, to augment or increase the assets of the bank. We will dispose of these contentions of appellant’s in the order stated.
I. It is conceded by appellee that, if the certificate of deposit was issued by the savings bank upon the authority and with the knowledge of the officers of appellee, the relation between the two banks became that of creditor and debtor, and not that of trustee and cestui que trust. The evidence does not establish a custom of dealing between the banks from which the inference could properly be drawn that the savings bank was authorized to issue the certificate of deposit and to retain the same in its own possession, or that such was the general method of doing' business between them. On the contrary, under the facts shown, it was the duty of the savings bank to promptly remit the proceeds of the note to appellee. It appears that certificates of deposit were issued by the savings bank in a few instances, but they were forwarded to appellee, where they were treated the same as drafts or cashier’s checks, except that,, by special arrangement upon a few occasions, the money was left on deposit for a time in the savings bank.
The contention that appellee subsequently accepted the certificate and ratified the deposit evidenced thereby presents a more difficult question. All parties concede that the certificate was retained by the savings bank until some time after August 10, 1921, and that it later turned up in the possession of appellee. Lehnen, the cashier of the savings bank, testified that he deliv
II. Before the appellee would be entitled to have its claim established and paid as a preferred claim, it was incumbent upon it to prove, in addition to such facts as would establish a constructive trust, that the trust funds, or some part thereof, came into the hands of the receiver, so as to augment the assets of the bank in his hands, and that same may be withdrawn without impairing the rights of general creditors. Jones v. Chesebrough, supra; Bradley v. Chesebrough, supra; Messenger v. Carroll Tr. & Sav. Bank, supra. This may be proved by facts, or it may appear by presumption. The trust fund came lawfully into the possession of the savings bank as the agent of appellee, and it will be presumed that the fund was retained in its custody and that it was turned over to the receiver, unless the contrary is shown. Jones v. Chesebrough, supra; Bradley v. Chesebrough, supra; Messenger v. Carroll Tr. & Sav. Bank, supra. Appellant had the burden of overcoming this presumption. This he could do by showing a dissipation of the trust fund before the receiver took charge of the bank. The proof, however, shows nothing of the condition of the bank at the time the collection was made or thereafter, except that its assets were about $412,000 at the time the receiver took possession thereof, and that it was indebted on overdrafts for about $14,000. The assets of the bank also included about $19,000 in other banks, but this was offset by indebtedness due the banks having the same on deposit. Lehnen testified that the savings bank had cash on hand at all times after the note was paid, in excess of the amount claimed. About' $2,800 was turned over to the receiver by the bank. The liabil
We are satisfied with the conclusion of the court below, and it is, accordingly, — Affirmed.