50 F. 355 | U.S. Circuit Court for the District of Massachusetts | 1892
These two cases were submitted together on bill and demurrer. If the opinion of Judge Colt, handed down in this court March 11, 1892, in Bank v. Beal, 49 Fed. Rep. 606, had been to the same point as now arises, I would be bound by it; but it was not. It, however, states a rule which is useful here, as follows:
“When payment was made and credit given,'’it seems to me the Maverick Bank ceased to be agent of the complainant, and the relationship between the two became that of debtor and creditor.”
In Commercial Nat. Bank v. Hamilton Nat. Bank, 42 Fed. Rep. 880, Judge Gresham seems to have expressed the opinion that, notwithstanding credit given by a collecting agent having the same relations which the Maverick National Bank has to this case, the primary owner might make claim against the subordinate agent until the subordinate agent had actually remitted; but I am concluded by the rule laid down by Judge Colt, and, as I state further on, the cases at bar do not require any consideration of the conclusions of Judge Gresham on this particular point. The facts in No. 2,978, in which payment was made to the Taunton National Bank, are in the simplest form for the preservation of
The nature of these transactions has been fixed by a practico so extensive, uniform, and long continued that the courts must take cognizance that, when the proceeds of collections have been actually received into the vaults of a bank bearing the relation to the primary owner of the collection paper which the Maverick National Bank bore to the complainant, and have been credited by the former to the latter, the agency ceases, the avails can no longer be traced, or claimed as trust assets, and the matter is merged into one of mere debit and credit. Whether or not, when the proceeds are so clearly identified and so free from new equities as in No. 2,978, the primary owner does not have the option of treating the intermediate bank as its creditor, or of demanding from the local bank the avails, so long as the latter continues to hold them, it is not now necessary to consider. It is enough for the present that, so far as the rule already quoted from Judge Colt concerns this ease, the complainant is affected only by the state of accounts between it and its immediate correspondent; and its title to the paper, or its proceeds, is not prejudiced by the mere fact that some other bank holds either as the immediate agent of the complainant’s correspondent, until the latter has by suitable entries on its books completed and recognized the relation
What is the ultimate limit to which the spes recuperandi may reach it-is not necessary now to decide, and it may vary according to special circumstances of differing cases; but that, in the present instance, it continued-' until the proceeds had actually been remitted by the Taunton National Bank, or were at least so entered by the Maverick to complainant in the usual course of business that the right of complainant as creditor was absolutely and fully recognized, as well as fixed, seems to be implied in what was said by Judge Colt, and appears to me to be the correct rule. No intervening rights are prejudiced by sustaining complainant’s claim for the avails of the draft collected by the Taunton National Bank, and, therefore, none need be considered so far as concerns No. 2,978. Exchange Nat. Bank of Pittsburgh v. Third Nat. Bank of New York, 112 U. S. 276, 5 Sup. Ct. Rep. 141, and the earlier case of Hoover v. Wise, 91 U. S. 308, are conclusive on this court, to the effect that in this trans- . action the Taunton National Bank was the agent of the Maverick, and that the latter would have been responsible for any insolvency or lack of diligence of the former, although the complainant knew when it forwarded the bill or draft to the Maverick that it must transmit the same to Taunton for collection, and although the bank at Taunton exercised an independent occupation, and was not a mere servant of the Maverick. The respondent claims that, as the relations of the bank at Taunton to the Maverick are thus defined by the supreme court, the money, when collected at Táunton, became at once the money of the Maverick, in fact and in contemplation of law; so that from the moment of payment to the local bank the Maverick became a debtor to the complainant, and the complainant was entitled to all the rights of a creditor. It is to be noticed that this proposition was not passed on by the supreme court, but is sought to be built up from what it did decide. It must be admitted that the right of the complainant was not concluded by the mere fact that the Maverick became from a certain instant its debtor, if it did; because the question still remains the leading one in the case, whether, .notwithstanding that fact, the complainant did not retain an option to decline to regard the Maverick as its debtor, and in lieu thereof to look to the proceeds of its draft, wherever it might find them. ” By analogy, the factor who sells goods on a guaranty commission becomes the debtor of the manufacturer from the instant the goods are sold; and yet it must be conceded that the latter has the choice of declining to accept the credit, and of making claim to the account held by the vendor against his customer. It seems to me the case turns on the proposition that, while it must be admitted that the avails of goods or of choses in action, when they come in fact into the hands of a bank or factor authorized to deal with them, are thus so- mingled with the mass of assets as to lose their ear-marks, yet they preserve their identity so long as they remain
As to case No. 2,979, in which the sub-agent was the Massasoit National Bank, it seems to me that, until this bank is made a party, it is not proper to adjudicate whether it can maintain the offset which it has attempted, whether the remedy of the complainant is against it for all except S144.04, or against the receiver, if it has any remedy at all, or whether or not the rule of Freeman's Nat. Bank v. National Tube-Works 151 Mass. 413, 24 N. E. Rep. 779, or that of Commercial Nat. Bank v. Hamilton Nat. Bank, already cited, applies, or even to adjudicate at all. If this was an action at law, it might, perhaps, on the principles applied in No. 2,978, bo maintained for the item of §144.04; but in equity it does not seem suitable to thus split up a controversy. In No. 2,979, there will be a decree sustaining the demurrer, and dismissing the bill, with costs, unless the Massasoit National Bank is brought in by amendment filed on or before tbe June rules next; and in No. 2,978 tbe demurrer is overruled, and the defendant ordered to plead or answer on or before the same June rules, the costs to abide the final decree.