26 F.2d 208 | 8th Cir. | 1928
This is an appeal from the allowance of a general claim against a national bank and its receiver. The plaintiff below was the owner of a note and a mortgage securing its payment. She sent it to her agent for collection. The •debtor, in payment of it and in payment of an amount owing to another creditor, gave a cheek to the plaintiff’s agent, which was drawn upon another bank. The agent deposited this check with the defendant below for collection and credit. It was collected and credited, but the defendant below failed four days after the deposit of the check. The amount standing to the credit of the agent at the time of the bank’s failure was slightly more than.the amount of the deposit.
The plaintiff’s bill and the proof authorized the allowance of her claim as a general claim, for money of the plaintiff, had and received by the defendant bank. Wilson & Co. v. Smith, 3 How. 763, 770 (11 Ed. 820); Bayne et al., Trustees, v. United States, 93 U. S. 642, 23 L. Ed. 997; United States v. State Bank, 96 U. S. 30, 35 (24 L. Ed. 647); Bradley Lumber Co. v. Bradley County Bank (C. C. A.) 206 F. 41, 45. After the plaintiff had proved that her money had come into the possession of the defendant, the burden rested upon the defendant to show how it had disposed of it. Parker v. Harrison, 146 Mo. App. 329, 129 S. W. 1026; People’s State Bank v. Kelly, 78 Ind. App. 418, 136 N. E. 30; Ackerman v. Cobb Lime Co., 125 N. Y. 361, 26 N. E. 455.
The receiver testified that, after’ the closing of the bank, the amount of the deposit standing to the credit of the agent was offset against the loans of the agent. On motion of the plaintiff, this testimony was stricken because it was incompetent and not addressed to any issue made by the pleadings. The correctness of this ruling presents the only real question in the ease. There was no proof of any facts tending to show an indebtedness of the agent, due or to become due, to any one. The receiver testified to a mere conclusion. If the testimony could be ■considered as proof that the agent was indebted to the bank when it closed, to an amount greater than the amount of the deposit, that fact alone would not be a sufficient defense to the plaintiff’s claim as it was pleaded and proved.
The principles which control the decision in a case of this kind are illustrated and applied in Wilson & Co. v. Smith, 3 How. 763, 11 L. Ed. 820. In that ease the plaintiffs had sent a draft to their agent for collection, and this agent sent the draft for collection, to its sub-agent. The sub-agent collected the draft and credited the amount to an indebtedness of the agent, in ignorance of the true ownership of the draft. The plaintiffs were held to be entitled to recover from the subagent. The court said:
“Upon this part of the ease, as well as
In the case of Bank of the Metropolis v. New England Bank, 1 How. 234, 11 L. Ed. 115, again decided in 6 How. 212, 12 L. Ed. 409, the rule was stated that a bank receiving paper for collection from another bank without notice that the paper was not owned by the transmitting bank, was not entitled to hold the proceeds of the paper collected, as against the real owner, unless credit was given to the transmitting bank or balances were allowed to remain in its hands, to be met by negotiable paper transmitted or expected to be transmitted, in the usual course of business between the banks. See, also, United States v. State Bank, 96 U. S. 30, 35 (24 L. Ed. 647); Beaver Boards Cos. v. Imbrie & Co. (D. C.) 287 F. 158; George D. Harter Bank v. Inglis (C. C. A.) 6 F.(2d) 841; Shotwell v. Sioux Ealls Savings Bank, 34 So. Dak. 109, 147 N. W. 288, L. R. A. 1915A, 715.
There was no proof that the defendant bank had given any credit, made any advances, or in any other way had made any change in its position, because of the deposit in the agent’s name of the plaintiff’s money. Interest was allowed to the plaintiff on the amount of her claim from the date of the deposit to the date of the decree. This was erroneous. White v. Knox, 111 U. S. 784, 787, 4 S. Ct. 686, 28 L. Ed. 603; Butler v. Western German Bank (C. C. A.) 159 F. 116, 117; Richardson v. Louisville Banking Co. (C. C. A.) 94 F. 442, 449; Hallett v. Fish (C. C.) 123 F. 201, 202. The decree will be modified so as to allow to the plaintiff the amount of her claim with interest to the date of the closing of the bank, and, as so modified, will be affirmed.