116 Neb. 530 | Neb. | 1928
This is another case arising out of the failure of the Security State Bank of Eddyville, Nebraska. Benjamin Gomme, hereinafter referred to as claimant, a stockholder in said bank, had to the credit of his account in the bank when it closed its doors the sum of $5,694.78. A claim was filed for this amount, and it was asked that it be
From the record it appears that on the 9th day of December, 1922, claimant had a balance in his checking account in the bank of $905.04; that at that time the bank was in financial difficulties and its reserve was greatly depleted. The department of trade and commerce was insisting that the officers and stockholders should raise money and place it in the bank, to replenish its reserve. At that time claimant was the owner and holder of a $5,000 certificate of deposit issued by the bank. He sold and discounted this certificate to the Federal Trust Company of Lincoln for the sum of $4,780, which amount he deposited in the bank to the credit of his account.
It is apparent that this sum of $4,780 does not represent an ordinary deposit in the bank. In order to secure the money to place in the bank, claimant made a considerable financial sacrifice. This sacrifice was made and the money placed in the bank so that the bank’s cash reserve might be replenished. After this deposit was made, claimant,
This court, in State v. Security State Bank, ante, p. 526, holds: “In the absence of any agreement or instruction, where a debtor makes payments on a running account, and where neither he nor his creditor makes a particular application of the payments, ordinarily, the law will apply them to the extinguishment of those items of the debt which are earliest in point of time.” Applying the rule so announced, it appears that the whole of the $4,780, representing the loan, was in claimant’s account when the bank closed its doors.
Section 8033, Comp. St. 1922, in part provides: “No claim to priority shall be allowed which is based upon any evidence of indebtedness in the hands of or originally issued to any stockholder, officer or employee of such bank, which represents money obtained by such stockholder, officer or employee, from himself or some other person, firm, corporation or bank in lieu of or for the purpose of effecting a loan of funds to such failed bank.”
This court has held, in effect, that a claim against a failed state bank which represents money that a stockholder obtains and places in the bank for the purpose of aiding the bank to keep up its reserve is not within the protection of the depositors’ guaranty fund. State v. Farmers State Bank of Dix, 115 Neb. 574, State v. Atlas Bank of Neligh, 114 Neb. 646.
The claim, to the extent of $4,780, represents a loan to the bank and is without the protection of the depositors’ guaranty fund. The evidence justifies a finding that the remaining part of the claim, other than the $4,780, represents deposits made in the usual and ordinary course of
The promissory note of claimant was given under the same conditions and circumstances as the promissory note in the case of State v. Security State Bank, ante, p. 526. It was without consideration, and the receiver was not entitled to have it set off against the claim.
The judgment of the district court is therefore reversed, and the cause remanded, with directions to allow $4,780 of the account, with interest thereon, as provided by law, as a general claim, and $914.78, with interest thereon, as provided by law, as a preferred claim, payable from the depositors’ guaranty fund, and a recovery upon the promissory note as a set-off against the claim should be and is disallowed.
Reversed.