215 Wis. 288 | Wis. | 1934
The plaintiff contends that the deposit in his general account with the defendant bank was a trust fund, the funds in which were allocated by him to the several clients to whom they belonged, and was therefore a special as distinguished from a general deposit, and not applicable by the defendant bank to payment of or offset against his personal indebtedness to the bank. He claims that the bank had notice that the funds were a special deposit, and not subject to offset against his personal indebtedness, because, as. he claims, he informed the cashier of “the purpose to be achieved” by the two accounts, which apparently was originally to put money belonging to his clients in a separate account from money belonging to himself.
As to the right of offset of the personal notes of plaintiff owing to the bank, the plaintiff received notice from the bank of the offset. He claims that he objected to the offset, but he retained the canceled notes. In view of this retention it is manifest that he cannot object to the allowance of their offset in this suit. He may not have his cake and eat it too. In fact the demand of his complaint is for recovery of the total amount on deposit in the two accounts, less the amount of his personal notes. He has thus conceded the correctness of this offset. On principle no distinction can be drawn between the right to offset the amount of the plaintiff’s personal notes and the right to offset the amount due on his guaranty of the Wausau Investment Company’s notes. As to the right of offset in. general it may be said that a deposit in a liquidating bank may be offset by a depositor against a debt owing by him to the bank, regardless of the amount the bank may eventually pay its depositors. Jones v. Piening,
The plaintiff also contends that under sec. 331.07 (3), Stats., which provides that, to be a subject of offset in an action, a claim must háve existed at its commencement, the bank is not entitled to have the Wausau Investment Company’s notes offset because those notes and the plaintiff’s guaranty thereof were assigned to the State Bank of Wausau in March, 1933, and his suit was begun April 7th. To this it seems sufficient to say that the defendant bank was reorganized under sec. 221.22, Stats., as a state bank. The national bank was merely converted into a state bank. The
By- the Court. — The judgment of the circuit court is affirmed.