114 Neb. 867 | Neb. | 1926
The Citizens State Bank, as we find from the record, was organized in 1913 for the purpose of conducting a general banking business as is usual under the banking laws of this state, and continued to transact such business until November 21, 1923, when it became, and was found to be insolvent. A receiver was duly and legally appointed by the 'district court for Antelope county, who proceeded to wind up its affairs. Shortly after the bank’s organization, to wit, November 19, 1913, Sadie Shafer, claimant and appellant herein, became a time depositor thereof in the sum of $300. As evidence of such deposit, a certificate was
Certificate No. 1911 was the outgrowth of a deposit of $600 made February 27, 1917, for a period of six months, drawing 5 per cent, interest as appearing on its face, but in fact by agreement drawing 51/2 per cent.; and thereafter at intervals of six months certificates of deposit were regularly issued in renewal of such deposit, which renewal certificates included interest at 5!/2 per cent, on the certificate renewed, and additional deposits, up to and including certificate No. 1875, issued February 28, 1923, which certificate was renewed August 28, 1923, by certificate No. 1911, here in controversy, which latter represented the following items: Face of certificate renewed $1,027.75, interest at 5 per cent, for six months or $25.70, total $1,053.45.
On the failure of such- bank, claims were lodged in due form by such Shafer with the receiver of such bank praying that each be allowed and ordered paid out' of the bank
The claimant testified: “On account of numerous failures of banks and getting to understand the law better, 1% felt that it wasn’t safe and wasn’t possibly protected under the guaranty law, so I asked them (the officers in charge of the bank) to reduce the interest to 5 per cent., which they did.” That she did and they did just what she swears was done is without opposing proof, and is strengthened by the acts of the bank as shown by its records when the' certificates in question were issued. The interest on the respective certificates thus renewed was computed at 5 per cent., and not at 5y¿ per cent., and the renewals drew, and were understood to draw, but 5 per cent. Her contention is further supported by the books of the bank, in this: At all previous renewals the respective computed interest at 5y% per cent, was "shown on the books of the bank as interest charges, save the last few, which were computed as above indicated, and such interest payment entered in the expense account. As to the renewals in question, the bank book entry showed but a 5 per cent, interest charge for the six months preceding the issuance of each of these respective certificates. Hence, at a time when the bank was a going concern and perfectly solvent, at the request of the depositor, and upon a sufficient consideration, to wit, the reduction of interest, and by and with the consent of the bank, without any fraud, mistake, ulterior motives, or violation of law entering into the transaction, these loans drawing 5V2 per cent, interest (or as we have said deposits not within the provisions of the depositors’ guaranty law) were converted into deposits drawing 5 per cent, interest, within the protection of such law. Thus these matters stood at the time this institution was placed in the hands - of the receiver, and thus they must remain. State v. American Exchange Bank, 112 Neb. 834; State v. American Exchange Bank, ante, p. 626.
Remanded, with directions.