Hiatt v. Miller Bank

• Decision Date: 15 January 1931
• Citation: 34 S.W.2d 532,224 Mo.App. 1040
• Parties: MATTIE HIATT, APPELLANT, v. MILLER BANK, S. L. CANTLEY, COMMISSIONER OF FINANCE, RESPONDENT
• Court: Missouri Court of Appeals

34 S.W.2d 532

224 Mo.App. 1040

MATTIE HIATT, APPELLANT, v. MILLER BANK, S. L. CANTLEY, COMMISSIONER OF FINANCE, RESPONDENT

Court of Appeals of Missouri, Springfield

January 15, 1931

Appeal from Lawrence County Circuit Court.--Hon. Emory E. Smith Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and remanded.

Robert Stemmons for appellant.

(1) It is the duty of a bank to pay on demand all checks drawn by depositors on their checking account to the amount of their respective deposits. The fact that plaintiff had on deposit sufficient funds to pay the checks which arrived in the Miller Bank, when it was open and doing business, made it the duty of that bank to honor and pay the checks, and their failure to pay the checks thereafter constituted the bank and the commissioner of finance in charge of the liquidation of the bank, trustee as respects the right of preference. Johnson v. Farmers Bank of Clarksdale, 11 S.W.2d 1090; Waggoner v. Bank of Bernie, 281 S.W. 130; Claxton v. Cantley, 297 S.W. 975. (2) The fact that the bank did not have sufficient credit in other bank to pay said checks is immaterial, if other assets coming into the hands of the commissioner of finance are sufficient, such assets are impressed with the trust. Johnson v. Farmers Bank 11 S.W.2d 1090.

Farrington & Curtis and Paul W. Barrett for respondent.

Checks sent to a bank for remittance are not entitled to a preference, upon the bank's insolvency, unless the failed bank had sufficient funds on deposit at the time in a correspondent bank on which it could issue its draft in payment. Midland Nat. Bk. v. Brightwell, 148 Mo. 358, 49 S.W. 994; Noll v. Harrison County Bk. of Bethany (Mo. App.), 11 S.W.2d 73; Federal Reserve Bk. v. Millspaugh (Mo.), 282 S.W. 706.

SMITH, J. Cox, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

On the 5th day of February, 1929, the plaintiff filed her claim for a preference with the commissioner of finance, in charge of the liquidation of Miller Bank of Miller, Missouri. There is no complaint as to the form of the claim or pleadings in this case, therefore we do not set the pleadings out in full, but the plaintiff's claim sets out her theory of the case, and that part which is material here is as follows:

"Mattie Hiatt, of lawful age, being duly sworn, on her oath states that there was due her from the Miller Bank, Miller, Missouri, the sum of four hundred and twenty-five dollars, on October 10, 1928, which amount is now due and unpaid, and for which she is entitled to a preferred claim on account of the following facts, viz.: That she drew her checks for the above amount and delivered the same to the payee thereof, and that said checks were turned into said bank, in the usual course, for payment, and that said checks were in said Miller Bank for a long time prior to the closing of said bank, dishonored and unpaid, but retained by said bank until the closing thereof, when claimant at all times had sufficient money to pay said checks and said bank had on hands at all times sufficient money to pay the same, and that after the closing of said bank, said checks were returned to the payee thereof unpaid, so that claimant was forced to and did pay the amount of such dishonored checks to the payee thereof. . . . Affiant further states that prior to the closing of said bank she made and executed her negotiable promissory note to said bank for the sum of four hundred and ninety dollars, and that said bank would be entitled to an off-set of credit against this claim for said amount, if said note belongs to and is a part of the assets of said bank, but this affiant is informed and verily believes that the said note was surreptitiously taken from the assets of said bank, immediately prior to the closing thereof by one Dewell, who was an officer of said bank, and that said note is now in the possession of The McDaniel National Bank of Springfield, Missouri, who are claiming to be purchasers thereof from said Dewell, and who are threatening to attempt the collection thereof from this claimant. Affiant further states that there are no other credits or set-offs against this claim in favor of said bank.

"Claimant prays that this claim be approved by the commissioner of finance in charge of said bank, conformable to the laws of Missouri."

The plaintiff in her claim asked for a preference on an additional one hundred dollars which she had deposited a few hours before the bank closed, and for an additional amount allowed as a general claim.

On November 7, 1929, the court rendered judgment denying preference to any part of the claim, and after the court denied the motion for a new trial, proper steps were taken for an appeal to this court.

In her brief and argument the plaintiff does not contend that the court erred in not allowing her claim as a preference for the one hundred dollars deposited a few hours before the bank closed, but directs all her attention to the part of the claim described in the part of the petition heretofore quoted, and to the action of the trial court to that part of the claim only are we concerned.

The facts are very simple, and about which there is no controversy. On September 27, 1928, the plaintiff borrowed from the Miller Bank $ 490 and deposited the amount in the bank. She gave her note to the bank for that amount, and the note was later held by another party, so she was told, and M. E. Morris, cashier of the Peoples Bank of Miller testified, without objection, that he had it from the McDaniel National Bank that the Hiatt note was there to secure some personal indebtedness of some officers of the Miller Bank. On September 27, 1928, the day plaintiff borrowed the money from the Miller Bank and deposited the amount in said bank she gave three checks on the Miller Bank to Etta Rutherford, introduced as "Exhibit A" for $ 280; "Exhibit B" for $ 5; and "Exhibit C" for $ 43.35. These three checks aggregated $ 328.35. Each of these checks was endorsed by Etta Rutherford and cashed by the Spring River Bank of La Russel, Missouri, and each check was endorsed by that bank to the Bank of Aurora on September 29, 1928, and in turn each check was endorsed by the Bank of Aurora to the McDaniel National Bank of Springfield, and endorsed by that bank on October 2, 1928.

The McDaniel National Bank was the correspondent bank of the Miller Bank, and it was agreed by stipulation that the Exhibits A, B, and C, were in the McDaniel National Bank on the 2nd of October, 1928, and on that day endorsed by that bank and transferred to the Miller Bank, and that they were probably received by the Miller Bank on the 3rd day of October, 1928. It was further admitted that at that time the Miller Bank did not have funds in its correspondent bank sufficient to have issued drafts in payment of the remittance in which these checks were sent and of which they were a part.

It was shown by plaintiff's witness that a bank draft is the usual, customary remittance for checks which come through the mail as these had come, and that they are never paid in currency and specie.

The cashier of the McDaniel National Bank testified that these checks reached his bank through the Bank of Aurora, and all were forwarded to the Miller Bank on October 2, 1928, and the testimony was that they reached the Miller Bank on October 3, seven days before the bank closed, and were found there when the bank closed, and each check marked with the words "Bank Closed."

The plaintiff's motion for new trial contained the following assignments:

"First: Under the undisputed evidence in the record the plaintiff is entitled to a preference.

"Second: The court erred in finding for the defendant under the law and the evidence of the case.

"Third: Under the law and the evidence the judgment and decision of the court is for the wrong party."

The plaintiff in her "Points and Authorities" states her position in the following language:

"It is the duty of a bank to pay on demand all checks drawn by depositors on their checking account to the amount of their respective deposits. The fact that plaintiff had on deposit sufficient funds to pay the checks which arrived in the Miller Bank, when it was open and doing business, made it the duty of that bank to honor and pay the checks, and the failure to pay the checks thereafter constituted the bank, and the commissioner of finance in charge of the liquidation of the bank, trustees as respects the right of preference."

She relies upon the decision of the courts in the case of Johnson v. Farmers' Bank of Clarksdale, 11 S.W.2d 1090, and the case of Claxton v. Cantley, 297 S.W. 975. The respondent attempts to justify the action of the trial court by the decision in the case of Midland National Bank v. Brightwell, 148 Mo. 358, 49 S.W. 994. In the Bank v. Brightwell case we think the agreed statement of facts are not the same as here. We shall not set out the facts, but in that case the controversy was over a claim for $ 2650, and the opinion of the court said, "if it can be said that its collection items augmented the assets of the Slater Savings Bank it would seem that there is no escape from the...