Anderson v. Bayly

• Decision Date: 04 March 1933
• Docket Number: No. 6786.,6786.
• Citation: 63 F.2d 592
• Parties: ANDERSON v. BAYLY.
• Court: U.S. Court of Appeals — Fifth Circuit

63 F.2d 592 (1933)

ANDERSON v. BAYLY.

No. 6786.

Circuit Court of Appeals, Fifth Circuit.

March 4, 1933.

D. C. McMullen, of Tampa, Fla., for appellant.

Cyril E. Pogue and M. A. McMullen, both of Clearwater, Fla., for appellee.

George M. Powell, of Jacksonville, Fla., as amicus curiæ on behalf of appellee.

Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.

BRYAN, Circuit Judge.

On June 7, 1930, the Peoples' Bank of Clearwater, Fla., had collected $2,540.34 for the First National Bank of St. Petersburg, Fla.; and the St. Petersburg bank had collected $2,898.40 for the Clearwater bank, the money collected by each bank being represented by checks of its customers that had been forwarded to it by the other for collection and remittance. Both banks were acting in the usual course of business as mutual correspondents; neither was a depositor of the other. In an attempted settlement of the amount it had collected, the St. Petersburg bank sent its drafts on a New York bank to the Clearwater bank; but, because of its failure on June 9th, the drafts were not paid. In an action against it by appellant as receiver of the St. Petersburg bank to recover the amount due that bank, the Clearwater bank pleaded as a set-off the larger amount due it, and, having itself failed pending suit, appellee as its liquidator recovered judgment for the excess.

Appellant takes the position that it was error to allow a set-off, because, as he says, (1) the Clearwater bank did not have title to the checks which it forwarded to the St. Petersburg bank for collection, since until final payment the depositor of each such check remained the owner of it; and (2) the Clearwater bank held the amount which it had collected for the St. Petersburg bank as the latter's agent. Compiled General Laws of Florida, § 4326, provides: "All debts or demands mutually existing between the parties at the commencement of the action, whether the same be liquidated or not, shall be proper subjects of set-off, and may be pleaded accordingly. * * * In case the jury shall find a balance for the defendant, such defendant may claim a judgment for the same, and take out execution accordingly." The right of set-off, while it did not exist at common law, was provided for by statute of 2 Geo. II, c. 24, § 4, which enacted that where there are mutual debts between the plaintiff and defendant one debt may be set off against the other in order to avoid circuity of action and injustice. United States v. Eckford, 6 Wall. 484, 18 L. Ed. 920; North Chicago Rolling Mill Co. v. St. Louis Ore & Steel Co., 152 U. S. 596, 615, 14 S. Ct. 710, 38 L. Ed. 565. Independent debts of the parties may be set off against each other by way of mutual deduction, and so a claim founded on debt may be used by the defendant though it does not arise out of the transaction sued on, provided it tends to defeat or diminish the plaintiff's right to...