112 Neb. 792 | Neb. | 1924
This is a controversy between the receiver of the Wayne County Bank of Sholes, an insolvent corporation, and Gottlieb Storz, claimant, who pleads that he is an unpaid depositor entitled to the protection of the bank guaranty law. The department of trade and commerce took charge of the bank in a failing condition August 25, 1922, when it was.indebted to claimant in the sum of $18,000, evidenced by four certificates of deposit which had been issued by the bank to claimant May 16, 1922, three for $5,000 each, bearing interest at the rate of 5 per cent, per annum and maturing respectively November 2, 1922, November 15, 1922, and December 1, 1922, and one for $3,000, bearing interest at the same rate and maturing June 6, 1922. In a proceeding by the state to wind up the affairs of the bank, Storz filed with the receiver a claim for $18,000 and interest, based on the four certificates of deposit mentioned, praying for payment out of the bank guaranty fund. The receiver objected to such payment, and urged as defenses that the certificates were mere renewals of former certificates; that the bank for its own benefit at its own solicitation was a borrower; that claimant and the bank entered into and carried out a secret agreement for the payment of excessive interest; that the original transactions and the renewals resulted in loans instead of deposits; that claimant was a lender and not a depositor
Was claimant a lender as distinguished from a depositor within the meaning of the bank guaranty law, providing that — “No banking corporation transacting a banking business under this article shall pay interest on deposits, directly or indirectly, at a greater rate than five per cent, per annum ? ” Comp. St. 1922, sec. 8008.
When the bank failed it was legally indebted to claimant in the sum of $18,000. In money or its equivalent it had received that sum from assignors of claimant. This amount does not include any interest. None of the principal was ever returned. All transactions having any connection with the claim of Storz were evidenced by time certificates of deposit bearing on their face interest at the rate of 5 per cent. only. Some of them were issued as early as 1914, and for several years neither the bank nor any one for it paid any additional interest. The former payees named in the certificates were E. A. Higgins, the Storz Brewing Company, and its successor, the Storz Beverage & Ice Company. The companies named were corporations controlled by claimant, the principal stockholder and the present owner of the four certificates in controversy. At one time the bank had funds of claimant’s assignors to the extent of $25,000. Later this was* reduced by payments to $15,000, and afterward increased to $18,000, the amount of the claim under consideration. It was the practice of the bank to pay interest and issue new certificates upon maturity of the old.
At times when the bank could not pay certificates at maturity its cashier applied to claimant for renewals and for more money. The granting of such favors, however,
Were the transactions involved in this proceeding converted from deposits into loans by the payment of interest in excess of 5 per cent. — the rate specified in all certificates of deposit? The reserve of the bank became impaired. It was unable to pay the time certificates as they matured. Interest rates generally increased. The cashier solicited a retention of the funds and applied for more money. He was told by claimant, while in control' of corporations which owned unpaid certificates aggregating $15,000, that the rate of interest was too low and that he wanted his money. He did not demand usury. The cashier offered additional interest at a rate satisfactory to claimant. Definite terms of the new arrangement do not appear in any writing nor are they stated by any witness. Afterward maturing certificates were surrendered and new ones issued, each, bearing on its face interest at the rate of 5 per cent., which was regularly paid by the bank, the cashier paying in addition by his individual check a bonus varying at different times from 1 to 3 per cent. Claimant testified that the arrangement for additional interest was the individual obligation of the cashier. The payment of the bonus by individual check, while the bank paid 5 per cent, only, tends to confirm the testimony of claimant. The receiver calls attention to evidence that payments of additional interest by private check were afterward charged to the bank and credited to the personal account of the cashier. The result
Moreover, the secret agreement pleaded by the receiver seems to have been abandoned when the bank issued the ■certificates upon which the claim of Storz is founded. When he was the individual owner of four unmatured certificates representing the funds in controversy, bearing interest at the rate of 5 per cent, per annum, aggregating $18,000, and payable to the Storz Beverage & Ice Company, he surrendered them to the bank May 16, 1922, without any agreement or purpose to exact additional interest, and received in lieu thereof the certificates on which the present ■claim is based. On these latter certificates no excess was ever paid by any one. Excessive interest on surrendered certificates under the circumstances disclosed by the record does not necessarily affect new ones issued and accepted in compliance with statutory terms. State v. American Exchange Bank, p. 834, post. The better view of the evidence and the law applicable thereto leads to the conclusion that claimant is protected by the bank guaranty law. That part of the judgment to the contrary is reversed and the cause remanded for the purpose of allowing his claim as a deposit.
Reversed.