Dahl & Penne, Inc. v. State Bank of Portland
| Decision Date | 13 February 1924 |
| Citation | 110 Or. 68,222 P. 1090 |
| Parties | DAHL & PENNE, INC., v. STATE BANK OF PORTLAND. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Multnomah County; Walter H. Evans, Judge.
Petition in intervention by Dahl & Penne, Inc., in the matter of the liquidation of the State Bank of Portland to have an assigned claim declared a preference. From a decree in favor of petitioner, the liquidator appeals. Modified and remanded with directions.
Dahl & Penne, Inc., as assignee of a copartnership of that name filed, in the liquidation proceedings pending in the circuit court for Multnomah county, against the State Bank of Portland, an insolvent state bank, a petition in intervention, praying to have its assigned claim decreed to have a preference right to priority in payment over general creditors of the bank.
The petition alleges, in substance, that in October, 1921 intervener's assignors had on deposit in said bank a sum of money, subject to check, against which they drew and presented a check payable to their order for a part thereof that the bank paid said check and charged the full amount thereof against the drawer's account, but in making such payment, by mistake, it paid $1,000 less than the amount for which the check was drawn; that demand for payment of the difference has been made and refused; that it was the custom of the bank to issue certificates of deposit payable to the bank's order for overages growing out of the payment of checks, and pursuant thereto the bank did, on or about December 31, 1921, issue a certificate of deposit payable to its order, reciting that "Over & Short Has deposited in his bank $912.75 account overage of Letz (the paying teller) on October 3, 1921"; that the bank has since retained said certificate of deposit and refused to deliver it to intervener; that this certificate of deposit, together with the assets of the bank, has passed into the hands of the the superintendent of banks, who is now in possession thereof and refuses to pay intervener's claim, although duly demanded.
The evidence shows that the check in question was presented and paid on October 3d, and that at the end of that day's business the bank discovered an overage of $912.75, and on the next day an additional overage of $107.15, and at the end of the year had an overage of $912.75; that in order to prevent this overage from passing to the credit of undivided profits, and to keep it intact for whoever might be found to be entitled to receive it, the bank issued the certificate of deposit in question. The bank made no segregation of the money represented by the certificate of deposit. The evidence also shows that the bank promised intervener's assignors that, if it was established that the amount represented by the certificate of deposit belonged to them, the bank would pay them the amount of the certificate. Intervener's assignors continued to keep their account at the bank up to the time it became insolvent, and at that time had on deposit some $8,000.
The trial resulted in a decree adjudging that intervener's claim for $1,000 is a preferred claim and is entitled to priority in payment over general creditors of the bank, and from this decree the superintendent of banks has appealed.
Jay Bowerman, of Portland (Bowerman & Kavanaugh, of Portland, on the brief), for appellant.
John C. Shillock, of Portland, for respondent.
RAND, J. (after stating the facts as above).
It is urged on behalf of the superintendent of banks that the State Bank of Portland, until it closed its doors, was liable because of its error in an action at law for the recovery of the money, or else, as a depositor creditor, for the amount shown on the deposit book, plus the amount of the error. The petitioner, however, contends that because of this mistake the retention by the bank of the $1,000 constituted a special deposit, and that the bank became a bailee of the money, holding the same in trust for petitioner.
At the time this check was presented to the bank for payment petitioner's assignors had...
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...are provided by law (although they may, within limits, be varied by agreement.)" (citations omitted)); Dahl & Penne, Inc. v. State Bank of Portland, 110 Or. 68, 72, 222 P. 1090 (1924) (relationship between bank and depositor is that of "debtor and creditor": "The contract between the partie......
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