112 Neb. 272 | Neb. | 1924
This is a controversy between A. F. Ackerman, receiver of the American State Bank of Aurora, an insolvent corporation, and the National American Fire Insurance Company, claimant, as a depositor. An officer of the state took charge of the bank in an insolvent condition March 17, 1920, and Ackerman went into possession as receiver May 14, 1920. In a proceeding to wind up the affairs of the bank, claimant pleaded a deposit of $15,000, evidenced by three time certificates dated December 16, 1919, each for $5,000, all bearing interest at the rate of 4 per cent, per annum and maturing respectively in four, eight and twelve months. The regular blank forms of the American State Bank were used in drawing the certificates. They were signed for the bank by Charles W. Wentz, vice-president,
Did the certificates represent a deposit within the meaning of the bank guaranty law? Charles W. Wentz, vice-president and managing officer of the American State Bank of Aurora, went into the office of claimant at Omaha December 16, 1919, and applied on behalf of that bank for a deposit of $15,000. When told, as he was, that claimant could not make a deposit of $15,000, he said liberty bonds of the United States could be accepted on the basis of cash. Claimant then agreed to make such a deposit and turned over to Wentz liberty bonds amounting on their face to $15,000, receiving from him the three certificates of deposit in controversy, aggregating $15,000. Instead of depositing the bonds in the American State Bank of Aurora on the basis of cash, Wentz immediately transferred them to the United States Trust Company of Omaha for $13,704.68, which he deposited in the United States National Bank of Omaha to the credit of the Wentz Company, a corporation dealing in real estate, farm loans, mortgages and insurance, and transacting business at Aurora under his exclusive control in the rooms occupied by the American -State Bank.
It is first argued that claimant left no money in the American State Bank as a deposit subject to check or as a basis for a time certificate. It has recently been held that “the presence of the actual money is not a prerequisite to a deposit.” State v. Banking House of A. Castetter, 110 Neb. 564; State v. American State Bank, ante, p. 182. Liberty bonds are interest-bearing securities of a high order. Fraud or dishonesty on the part of claimant, because it exchanged liberty bonds at par for the certificates of deposit, is not a proper inference from the evidence. It seems
Other propositions ably presented by counsel for the receiver may be summarized as follows: In accepting the liberty bonds for deposit, Wentz was the agent of claimant. He did not act for or in the interests of his bank and any loss resulting from his failure to deposit the liberty bonds therein falls on his principal, the claimant. Banks do not contemplate the receiving of deposits outside their places of business and do not become liable as bankers before the deposits are delivered. In this connection it is insisted that neither the deposit nor its equivalent was received at the American State Bank to its credit, and that therefore it is not liable to claimant as a depositor. The law thus invoked by the receiver is sound in principle and should not be relaxed, but there are exceptions to the general rule. If a cashier should leave his bank during an unreasonable run, procure from other banks, on certificates of deposit issued by him while absent, funds which stop the run, save his bank, protect unpaid depositors and prevent a public disaster, would he be the agent of a bank whose currency under such circumstances was lost in transit? In the situation assumed the initial transactions, though identical in character, would result in the protection of a depositor in one instance and in a loss in another. It would be a strange rule indeed that would sanction such a doctrine. To prevent anomalies like that, exceptions to general rules are recognized.
Whether the present controversy falls within an exception is the question to be determined. Wentz had exclusive control of the Wentz Company. As vice-president of
Affirmed.
Note — See Banks and Banking, 7 C. J. p. 485, sec. 15 (1925 Ann.) ; p. 486, sec. 16; p. 648, sec. 338 (1925 Ann.) ; p. 637, sec. 318.