146 Ga. 786 | Ga. | 1917
(After stating the foregoing facts.) The question to be determined in this case is, whether the Hnited States Bank of Omaha, hereinafter called the intervenor, is entitled to a preference over general creditors of the insolvent Bank of West Point, by reason of the facts set out in the record. The solution of this question has been simplified by the clear statement of the contentions in the briefs of counsel for the respective sides. Both sides admit that there must be an identification of the funds collected by the
As is seen from what precedes, counsel by the exercise of great ability and zeal have furnished an elaborate array of authorities to support their respective contentions. The transaction at the base of the litigation is of such frequent and ordinary occurrence-in the channels of business that it has often been the subject-matter of judicial deliverance. It is not to be wondered that the courts have disagreed, especially since there is not wanting a basis for strong and appealing argument on both sides of the question. While this is true, there is not so much real conflict of principle as the alignment in the briefs would indicate. Some of the cases differ only because of special facts peculiar to themselves. It is useless to consume time and space in a vain endeavor to reconcile conflicting cases; for the decisions themselves abound in such discussions, explanations, modifications, and retractions. This court has discussed many of the decisions on the question, and we are already committed on the fundamental principles underlying the case.
We think that the rule applying to such transactions is not altered by reason of payment of the draft by a check. We agree with counsel for the plaintiff in error that the practical result is the
In Pollak v. Niall-Herin Co., 137 Ga. 25 (72 S. E. 415, 35 L. R. A. (N. S.) 13), it was said: “Courts should deal with practical problems in a practical way, and give the same sense to a plain and ordinary business transaction which is uniformly attached to it by the business world.” Continuing, the court said: “Our code declares that judicial notice will be taken of the general customs of merchants and similar matters of public knowledge. Civil Code (1910), § 5734. . ' . We dare say that no depositor who paid a note or draft payable at his own bank ever went through the senseless ceremony of first taking out his money at one window and immediately paying it in at another window. He pays the note or demand which his bank holds against him with his check; and if he has the money to his credit, and the bank is a going concern, with money on hand sufficient to cash the check, the payment is equivalent, in law and in fact, to a payment in money.” When a merchant or a forwarding bank sends to a collecting bank a draft on a customer, the sender understands that the collecting bank will follow the usual custom of the banking business, and impliedly assents to the same. Young v. Teutonia Bank, 134 La. 897 (64 So. 806).
Hnder the facts of this case we think it is clear, from the standpoint of reason and justice and by the weight of authority that when the collecting bank sent its check by the usual course of business, no trust existed, but, on the contrary, that the relation was simply that of debtor and creditor. Some courts have drawn a distinction between eases where the collections have been made without any specific instructions, but only under the implied instructions to collect and remit in the usual course of business, and those where there have been specific instructions to “collect and remit.” The argument in favor of holding the transaction to be a trust would be stronger where there were specific instructions. In this ease, h'owever, it is not contended that there were any specific instructions. The question in this State, however, has been
Having ruled that the intervenor was not entitled to a preference over the general creditors, it is unnecessary either to state or to discuss the contentions of the plaintiff in error in regard to identification of the funds. The assignments of error in regard to the admission of evidence, not being mentioned in the brief of counsel for the plaintiff in error, are considered as abandoned.
Judgment affirmed.