Crouch v. Tarver

• Decision Date: 09 July 1934
• Docket Number: No. 13883.,13883.
• Citation: 175 S.E. 273
• Court: South Carolina Supreme Court
• Parties: CROUCH. v. TARVER. THORPE et al. v. FANT, Bank Examiner, et al.

175 S.E. 273

CROUCH.

v.TARVER.

THORPE et al.

v.FANT, Bank Examiner, et al.

No. 13883.

Supreme Court of South Carolina.

July 9, 1934.

Appeal from Common Pleas Circuit Court of Aiken County; J. Henry Johnson, Judge.

Proceeding by J. Ernest Thorpe and others against Albert S. Fant, as State Bank Examiner of South Carolina, and others, wherein Horace J. Crouch filed a petition against T. G. Tarver, as receiver of the Bank of Western Carolina. From a judgment in favor of petitioner, the receiver appeals.

Affirmed.

The master's report and the decree of Judge Johnson follow:

Master's Report.

This is an action seeking to have a certain account of the plaintiff in the Bank of Western Carolina at Barnwell, S. C, declared a preferred debt. The matter was referred to me under order of reference and removal from the Court of Common Pleas for Barnwell County. A reference has been held and such testimony taken as was submitted by counsel, which is herewith transmitted to the Court together with the several exhibits admitted into evidence. Subsequently to the taking of the testimony this matter was ably and fully argued before me by counsel of both parties.

Briefly, the facts in this case are:

On the morning of the 13th of October, 1931, the plaintiff, Horace J. Crouch, posted a letter addressed to the Bank of Western Carolina at Barnwell, S. C, which letter was received by those in charge of the Bank during banking hours on the same day. It appears that the letter contained a check for One Thousand dollars drawn by the Phoenix Mutual Life Insurance Company in favor of Horace J. Crouch, with certain instructions in regard to the disposition of said check. The Bank at Barnwell received the letter containing the check, properly endorsed by Crouch and the letter or note of instructions contained therein. The check was promptly forwarded to the drawee Bank in New York and payment thereof was duly made on the 15th of October at 2:00 o'clock, a. m. The Bank at Barnwell closed its doors at the regular time on the 14th of October, but failed to open on the morning of the 15th, having been taken over by the State Bank Examiner for a period of thirty days as provided by law. The Bank at the time of receiving aforesaid check held a past clue note of the plaintiff in the sum of $200.00. This note duly cancelled together with a deposit slip showing the One Thousand Dollar check deposited to the credit of plaintiff, less the $200.00 in payment of note, was forwarded to the plaintiff by the officers of the Bank on the 13th of October; and it appears that plaintiff received same through the mail on the 15th of October. The question arises when should this credit have been placed to plaintiff's account?

The law applicable to this case is clear and no question of law is involved. It is solely a question of fact and equity and the whole issue hangs upon one fact: Did the plaintiff, Horace J. Crouch, forward the check to the Bank for collection or for deposit? We have the testimony of three witnesses upon which to render a decision, Mr. Crouch, the plaintiff; Mr. Price, the Manager of the Bank at Barnwell and his assistant, Mr. Turner. I noted carefully the demeanor of each witness upon the stand and I was impressed with their intelligence, truthfulness and sincerity. There seemed to be an earnest desire on the part of all to bring as much light as possible on the issue.

Let us consider the testimony. The plaintiff states in positive and unequivocal language that he sent a letter of instruction to the Bank, requesting that the check be forwarded for collection, and when collected to deduct the $200.00 due on his note and place the balance to his credit. Mr. Price and Mr. Turner, witnesses for the defendant, do nottestify positively as to the contents of Mr. Crouch's letter, but their recollection of the transaction is that the check was sent for deposit. They do not positively contradict the statement of Mr. Crouch. The letter of instructions referred to was not introduced at the hearing and the evidence is that the letter was lost or destroyed. The preservation of this letter would have solved the issue absolutely. We must, therefore, consider the facts of this case in the light of surrounding circumstances. The check involved represented the proceeds of a loan obtained by the plaintiff on his life insurance policy. It was a larger sum than he usually handled. It was an important transaction for the plaintiff for he was drawing upon the resources of his life insurance policy. It was one single matter of business for the plaintiff. These various circumstances are conducive to impress the mind with a retentive recollection of the details of everything in connection therewith, and for that reason the plaintiff's positive statement about the transaction is very persuasive. On the other hand, Mr. Price and Mr. Turner, the two officers of the Bank, handled the transaction along with others. It was a part of their daily routine. It would be difficult for them to remember what at that time seemed an...