Fogg v. Tyler

• Decision Date: 08 April 1912
• Citation: 82 A. 1008,109 Me. 109
• Parties: FOGG v. TYLER.
• Court: Maine Supreme Court

82 A. 1008

109 Me. 109

FOGG

v. TYLER.

Supreme Judicial Court of Maine.

April 8, 1912.

Report from Supreme Judicial Court, Penobscot County, in Equity.

Petition by Herbert A. Fogg against Lin-wood C. Tyler. On report. Petition sustained.

Petition filed by George W. Maxfield in the matter of the receivership of Tyler, Fogg & Co., asking the court to issue an order directing the receiver of that firm to restore to him a package of money containing $500 in bills, which the petitioner deposited with the cashier of the firm for safe-keeping April 22, 1911. At the conclusion of the evidence, the case was reported to the law court for determination.

Argued before WHITEHOUSE, C. J., and CORNISH, KING, BIRD, HALEY, and HANSON, JJ.

E. C. Ryder, for petitioner. Charles H. Bartlett, receiver, pro se.

Edgar M. Simpson, for committee of unsecured creditors.

WHITEHOUSE, C. J. This is a petition filed by George W. Maxfield in the matter of the receivership of Tyler, Fogg & Co., asking the court to issue an order directing the receiver of that firm to restore to him a package of money containing $500 in bills, which the petitioner deposited with the cashier of the firm for safe-keeping April 22, 1911.

It is contended on the part of the petitioner that this was a special deposit, which was not to be mingled with the general funds of the bank and form a part of its disposable capital, but was to be kept by it, and be specifically returned. On the other hand, it is contended in behalf of the receiver that this' was an ordinary general deposit of money with the bank, which transferred the title to the bank and created the relation of debtor and creditor between the bank and the petitioner.

It is not in controversy that on the 22d day of April, 1911, the petitioner, George W. Maxfield, hastily entered the banking rooms of Tyler, Fogg & Co. and delivered to the cashier a package of bills containing $500, taking from him a receipt of the following tenor:

"April 22, 1911.

"Received of George W. Maxfield $500 for safe-keeping.

"$500. P. pro. Tyler, Fogg & Co.,

"Ralph P. Preble, Cashier."

According to the testimony of the petitioner, the deposit was made under the following circumstances: He received a telegram in the early afternoon of Saturday, April 22d, requesting his presence in New York the next morning, and, in order to comply with this request, it would be necessary for him to take the 1:50 train at Bangor in seventeen minutes from the time he received the telegram. He had lately received the package of $500 in bills from the Augusta Trust Company, with the ordinary bank wrapper around it marked "$500." On this wrapper, he marked his initials, "G. W. M.," with a pencil, and on his way to the railroad station stepped into the banking rooms of Tyler, Fogg & Co. and delivered the package to the cashier. Mr. Preble, stating that he wanted to leave that money there; that he didn't want to buy anything, and didn't want to sell anything; that he simply wanted to leave that package there until he got back from New York. The cashier replied: "Mr. Maxfield, you can have the money any moment you call for it." The petitioner testifies that the cashier started to open the package, and he said to him: "Don't meddle with that. Don't meddle with that. That is all right." "He says, 'All right, I just wanted to count it,' and he counted it and wrote the receipt pretty fast; for I had only seven minutes."

There is no necessary conflict between the testimony of the petitioner and that of the cashier in relation to the material facts. The cashier does not recollect seeing the initials of Mr. Maxfield upon the bank wrapper, but would not say they were not there. He also admits that it would be his natural course to put a strap around the bills and put them away as a package, but would not say that he did not put the same strap around the package, if he took it off. The Cashier also states that he does not recollect the petitioner's request that he should not meddle with the package.

The petitioner returned from New York on the next Saturday afternoon, Aptil 29th, but not in season to call for his package of money that day. The great fire of April 30th occurred the next day (Sunday), and rendered it impossible to open the vault of the I firm until May 25th. But, before the vault was opened, the petitioner made a demand upon the senior member of the firm for his money, and was informed that it would be delivered to him as soon as the vault was opened. But, before the opening of the vault, the firm was dissolved by a decree of court and a receiver appointed, who took over all the assets of the firm. From the time the money was deposited with the firm April 22d until the close of the banking hours on April 29th, cash was received and paid ofTt by the firm in the usual course of its banking business. When the vault was opened by the receiver, there was on hand in the vault in cash $1,620.21, and at no time after the petitioner's deposit to the time the assets were taken over by the receiver was there less than $500.

At the time the vault was opened, there were two $500 packages in it; but the cashier was unable to state whether either of them had the petitioner's initials upon it or not. The cash was kept in the vault, and the J checks received were deposited daily with the Kenduskeag Trust Company; and at the time the receiver took possession there was on deposit in that company the sum of $2,859.55 in addition to the amount of cash, above stated, in the vault of Tyler, Fogg & Co. The cashier expressly states that after he counted the petitioner's money he deposited it in the cash drawer, where all the cash receipts were deposited that were received during the week following the deposit in question; but there is no evidence that any other package of money was deposited that week expressly "for safe-keeping," or under circumstances similar to those of the petitioner's deposit. So far as appears, all other moneys received by the firm prior to the closing of its vault were general deposits, which created the relation of debtor and creditor between the depositor and the firm.

In response to an inquiry by counsel for the defendant whether, in his opinion, judging from all he knew of the dealings in the bank, the petitioner's package was in the bank at the time the vault was closed, the cashier says: "Couldn't state; I have no opinion on that subject."

At the close of the testimony, by agreement of the parties, the questions involved were reported for the determination of the law court.

It is well-recognized and familiar law that "deposits made with bankers are either general or special. In the case of a special deposit, the bank merely assumes the charge or custody of property, without authority to use it; and the depositor is entitled to receive back the identical money or thing deposited. In such case, the right of property remains in the depositor, and, if the deposit is of money, the bank may not mingle it with its own funds. The relation created is that of bailor and bailee, and not that of creditor and debtor." Alston v. State, 92 Ala. 124, 9 South. 732, 13 L. R. A. 659; 3 Am. & Eng. Enc. of Law, 324; McLain v. Wallace, 103 Ind. 562, 5 N. E. 911, 912; Pattison v. Syracuse Nat. Bank, 80 N. Y. 82-90, 36 Am. Rep. 582.

In Mut. Ace. Ass'n v. Jacobs, 141 Ill. 261, 36 N. E. 414, 16 L. R. A. 516, 33 Am. St. Rep. 302, the court said:

"As we understand the question, there is a wide difference between a special and a general deposit, as these terms are understood, not 'only by bankers, but by the public who are transacting...