Missouri Mut. Ass'n v. Holland Banking Co.

• Decision Date: 07 January 1927
• Docket Number: No. 4113.,4113.
• Citation: 290 S.W. 100
• Parties: MISSOURI MUT. ASS'N v. HOLLAND BANKING CO.
• Court: Missouri Court of Appeals

290 S.W. 100

MISSOURI MUT. ASS'N v. HOLLAND BANKING CO.

No. 4113.

Springfield Court of Appeals. Missouri.

January 7, 1927.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by the Missouri Mutual Association against the Holland Banking Company, in charge of C. E. French, State Commissioner of Finance, to have a deposit in the bank declared a special deposit and entitled to preference. From a judgment for defendant, plaintiff appeals. Affirmed.

Page & Barrett, Barbour, McDavid & Barbour, and C. W. Hamlin, all of Springfield, for appellant.

Roscoe C. Patterson, of Kansas City, and Orien Patterson, of Springfield, for respondent.

COX, P. J.

Action seeking to have a deposit in a bank that had failed declared a special deposit and entitled to preference in payment out of the assets of the bank. Trial by court, and finding for defendant denying the preference. Plaintiff appeals.

There was no dispute as to the facts in this case. It is conceded that, at the time the Holland Bank closed its doors and was taken over for liquidation by the state finance commissioner the plaintiff had on deposit in said bank the sum of $5,000. Plaintiff's claim is that this money was a trust fund and known by the bank officers to be such, and that, when deposited in the bank, it became a special deposit, as distinguished from a general deposit, and it is on that basis that plaintiff now claims the right to a preference.

The facts from which the character of this deposit is to be determined are as follows: Seven persons organized the plaintiff as an insurance comany upon the assessment plan. The statute (Rev. St. 1919, § 6156) under which this company was organized, as far as applicable here, is as follows:

"No decree shall be made, and no certificate of incorporation issued * * * until the superintendent of the insurance department shall certify * * * that five thousand dollars in cash have been deposited in a bank to the credit of the beneficiary fund of the proposed corporation, and that satisfactory assurances have been given to the said superintendent that the said sum of five thousand dollars will not be used for any other purpose than the payment of death losses or other benefits provided for in the policies or certificates issued by such corporation."

In order to comply with this statute, the seven persons who were the incorporators of plaintiff executed a note to the Holland Banking Company at Springfield, Mo., for the sum of $5,000, bearing date of September 7, 1923, and payable 6 months after date, with 6 per cent. interest. Following the delivery of this note to the bank, the bank issued the following agreement:

"Springfield, Mo., September 24, 1923.

"The Holland Banking Company agrees that, as soon as the papers are received from the insurance department of the state of Missouri, they will sign same, certifying that the Missouri Mutual Association has, on this date, September 24, 1923, $5,000.00 deposited to the credit of the beneficiary fund, said $5,000.00 being their guaranty to the state, and is not to be drawn on except by order of the insurance department.

"The said $5,000.00 to draw interest at the rate of 4 per cent. per annum, said 4 per cent. to be credited by the Holland Banking Company as payment on the note of the seven directors of the Missouri Mutual Association dated September 7, 1923. [Signed] E. N. Ferguson, for the Holland Banking Company."

We infer that this agreement on the part of the bank was communicated to the insurance department of the state. The insurance department then prepared and sent to an attorney in Springfield a certificate to be executed by the company that appears to be the one in general use by the department when insurance companies upon the assessment plan were organized and incorporated under the statute above set out. This certificate was executed by the bank and sent to the insurance department. The certificate was then issued, and plaintiff began business as an insurance company upon the assessment plan. The certificate just alluded to is as follows:

"Springfield, Missouri, October 5, 1923. "I, C. F. Wright, cashier of Holland Banking Company, of Springfield, Mo., do hereby certify that there is deposited in said Holland Banking Company to the credit of the beneficiary fund of the Missouri Mutual Association the sum of five thousand dollars ($5,000.00) to be used only in payment of vouchers or checks drawn by the Missouri Mutual Association for the payment of death losses or other benefits provided for in the policies or certificates issued by said association, and said Holland Banking Company will apply said five thousand dollars ($5,000.00) only upon checks or vouchers drawn on said beneficiary fund, countersigned and approved by the then acting superintendent of insurance of the state of Missouri, and reciting the number of the policy or certificate, and the date of the accident or death, by reason of which benefits have accrued under such policies or certificates, and upon which checks or vouchers the indorsement of the name of the payee shall constitute a receipt for the benefits to pay which they are drawn. [Signed] C. E. Wright, Cashier, Holland Banking Company, Springfield, Missouri."

At the time this certificate was executed, the bank entered upon its deposit sheet relating to the deposit of $5,000 deposited the following:

"Deposited $5,000.00 not to be paid out except on the order of the insurance department. Hold. See contract with Nelson."

The clause, "see contract with Nelson" meant the contract or certificate above set out, executed on behalf of the bank by C. F. Wright, cashier. This sheet had at the top this notation "4 per cent. interest," which it is explained meant that the bank was to pay 4 per cent. interest on this deposit. No checks were drawn on this account. The $5,000 was not kept separate and apart by the bank, but was placed in its general account. It was admitted that plaintiff carried another deposit account in the same bank, which was separate and apart from the one involved here, and was a general deposit account. It was also admitted that the commissioner in charge of the bank has on hand sufficient funds out of which to pay this claim, if it be determined that plaintiff is entitled to a preference.

On the facts stated, was plaintiff entitled to a preference? It is conceded by both sides that the issue hinges on the question whether this deposit was a general deposit or a special one. If it were a special deposit, it is conceded that plaintiff should be allowed a preference, but, if it is not found to be a special deposit, then the preference should be denied. The trial court held that it was not a special deposit, and denied the preference.

On the facts stated, was plaintiff entitled to a preference? It is conceded by both sides that the issue hinges on the question or a special one. If it were a special deposit, it is conceded...