108 Neb. 92 | Neb. | 1922
This is a controversy between A. F. Ackerman, receiver of the American State Bank of Aurora, an insolvent corporation, and E. J. Ivremer, claimant, as a depositor.
In a proceeding by the state of Nebraska to wind up the
For the purpose of determining the questions presented by the appeal, a more detailed statement of the'facts is necessary. ' In this connection the business relations of the parties to each other are material factors.
Kremer was a dealer in real'estate and a salesman for real estate brokers.
The Wentz Company was a corporation dealing in real estate, farm loans, mortgages and insurance at Aurora, Nebraska.
The American State Bank was organized as a commercial enterprise March 8, 1918. An officer of the state took charge of it in an insolvent condition March 17, 1920. Ackerman took possession as receiver May 14, 1920. The bank has not since been open for the transaction of a general banking business.
In some capacity Charles W. Wentz had exclusive control and management of the Wentz Company. He was also vice-president of the bank and as manager controlled generally its business affairs. It had a president in name only and a cashier, but the latter recognized Wentz as the superior officer and deferred to him.. The business of both
Through the agency of the Wentz Company, Kremer bought a farm, made a payment thereon in cash, and agreed to pay the vendor $25,000, the balance of the purchase price, March 1,1920, expecting then to realize funds for that purpose out of the proceeds of another farm which he had sold, but from this source money to the extent of $15,000 did not become available until March 15, 1920. Kremer, however, met his obligation to his vendor at maturity by raising funds in the following manner :
Negotiating with Wentz in the American State Bank, Kremer indorsed and delivered a check for $10,810, which had been issued to him by the Farley Investment Company to apply on the purchase price of the farm which he had sold. The check was indorsed by the bank and paid without bearing the indorsement of the Wentz Company. In addition, at the same time, Kremer, to procure $14,190 to pay the balance of his indebtedness of $25,000 to his vendor, applied to the bank for a loan. To serve some purpose of the Wentz Company or of Wentz, the latter, instead of taking a single note for $14,190, took two notes due SO days after date, one for $7,190, payable to the Wentz Company, and the other for $7,000, payable to the bank. Kremer signed and delivered both and was directed by Wentz to pay the bank the amount to become due on each. These notes and the check for $10,810, aggregating $25,000, were all dated March 1,1920. The same day the bank credited the account of the Wentz Company $25,000, a deposit made up of the check and the two notes described. Kremer, as
The principal argument of the receiver is directed to the proposition that, for the purpose of procuring from the Farley Investment Company the check for $15,000 and disbursing the proceeds thereof, the Wentz Company and Wentz were agents of Kremer. On this point attention is called to the fact that Wentz left the bank, procured the check while absent and deposited it in the name of the Wentz Company. It is insisted that in these transactions Wentz did not act for the bank or in its interests, and that the proceeds of- the check for $15,000 were received and paid out by the bank in good faith without actual or imputable knowledge of Kremer’s equities. In this con
The connection of the bank with these transactions did not begin when Wentz left his place of business to procure the check for $15,000 issued by the Farley Investment Company. Kremer had previously obtained a loan from the bank under an agreement to paj his notes out of a special fund. This was a transaction to which the bank was itself a party. Thus far questions of agency and knowledge do not arise. There is no lawful way for the bank to escape knowledge of what its managing officer had done in lending its money to Kremer, in taking notes for the amount lent and in arranging for payment out of special funds. The obligation of the bank to apply the balance of the proceeds of the farm sold by Kremer, Avhen received, to the payment of his notes Avas part of the agreement for the loan. It was only through the agency of some officer that this agreement could be made and performed on the part of the bank. The income from loans is a source of profit. A bank is interested in a borrower’s means for the payment of debts. A cashier or a vice-president may officially and properly leave his bank to perform a contract for his principal or to procure collateral for a loan or funds to pay notes.
• Kremer was on his way to California. He had made an arrangement with the bank for the payment of his notes. He did not know Avhat Avas taking place in the bank, but its officer Wentz did. During all of the banking hours of March 15, 1920, the cashier Avas absent. There Avas then only one officer in charge, and that was Wentz, vice-president and managing officer. It was on this date that Wentz, pursuant to an arrangement to which the bank Avas itself a party, procured funds of Kremer to the
This case seems to fall within an exception to the general rule relating to imputed knowledge. Where an authorized officer of a banking corporation, acting in its interests as its sole representative, procures, while absent from the bank, specific funds, pursuant to a previous arrangement, for the special purpose of paying notes of the maker to the bank, and refunding the surplus, and in that capacity, for the bank, receives and accepts such funds, the officer’s knowledge of the transactions may be imputed to the bank. On the established facts £he bank has no lawful way to escape the agency of Wentz or Ms knowledge of the transactions of March 15, 1920. Both agency of Wentz and knowledge of the bank are established by uncontradicted evidence.
The receiver argues further that Kremer, as a depositor, is not entitled to recover the surplus of $340.50. The proceeds of the check from which this surplus arose went into
No error has been found, and the judgment is
Affirmed.