Jourdan v. Bennett

• Decision Date: 07 April 1919
• Docket Number: 20643
• Citation: 119 Miss. 576,81 So. 239
• Court: Mississippi Supreme Court
• Parties: JOURDAN v. BENNETT, ET AL

81 So. 239

119 Miss. 576

JOURDAN v. BENNETT, ET AL

No. 20643

Supreme Court of Mississippi

April 7, 1919

Division A

1. BANKS AND BANKING. Issuance of cashier's checks. Effect.

Where a general depositor of a bank obtained cashier's checks from the bank to the amount of his deposits in the bank, this did not change the relation of debtor and creditor and make the transaction a special deposit.

2 ASSIGNMENT. Bill of exchange. Effect of.

Where a bank gave a depositor bills of exchange on a bank in another city not drawn on any particular fund in the hands, of the drawee, bank, but drawn generally on such bank such transaction constituted no legal or equitable assignment of this fund to the depositor.

3. BANKS AND BANKING. Special deposits. Title to.

In the case of special deposit, the title to the property never changes; the depositor is a bailor and not a creditor of the bank.

4. BANKS AND BANKING. Receivership. Preference claim. County funds. Under Code 1906, section 3485 (Hemingway's Code section 2823) a county claim for deposits in a bank at the time of the bank's failure is superior to that of a depositor to whom the bank had issued bills of exchange on a bank in another city. In such case the depositor had no preference claim.

HON. A J. MCINTYRE, Chancellor.

APPEAL from the chancery court of Tishomingo county, HON. A. J. MCINTYRE, Chancellor.

Suit by G. T. Jordan against W. T. Bennett receiver and others. From the decree rendered, both sides appeal.

The facts are fully stated in the opinion of the court.

Affirmed on direct appeal, and reversed on cross-appeal.

Cunningham & Cunningham, for appellant.

W. L. Elledge and W. J. Lamb, for appellee.

OPINION

SYKES, J.

The appellant, complainant in the court below, filed a petition in the chancery court praying that court to decree that he held a preference claim against the receiver of the Tishomingo Banking Company for three thousand, seven hundred dollars, and that the receiver pay him this amount out of funds in his hands. Complainant claimed that by reason of the facts herein below stated he made a special deposit in this bank of this amount. Tishomingo county had on deposit in this bank at the time of its failure thirty-five thousand, seven hundred dollars. The county made its claim for this amount as a preference claim and a trust fund binding upon the entire assets of the bank and being a prior lien upon these assets. From the record, the amount of the assets of the bank appears not to have been sufficient to satisfy in full the claim of the county. The real contest in the case is whether the claim of the county should be paid before that of complainant. The county's claim is based on section 3485, Code of 1906, section 2823, Hemingway's Code. The learned chancellor held that complainant made a special deposit of three thousand, seven hundred dollars in the bank and has a preference claim for this amount. He further held that the preference claim of the county was superior to that of complainant, and ordered the receiver to pay the county's claim, but denied the petition of complainant. The complainant appeals from this decree, and the receiver prosecutes a cross-appeal. Cross-appellant contends that the learned chancellor erred in holding that appellant had made a special deposit in the bank and held a preference claim for that amount. The receiver contends: First, that this question is res adjudicata; that it was decided adversely to the contention of the appellant in the Missouri courts in a contest in those courts for the fund now in controversy. Second, that the facts in the case show that there was no special deposit of this money in the Iuka Bank, and consequently this is no preference claim.

The claim of the appellant is based upon the following facts: He was a general depositor in the defunct bank and prior to December 19, 1911, he had a credit in said bank of over two thousand, five hundred dollars. About this time he decided to go to St. Louis to purchase live stock, and went to the bank and drew a check for two thousand, five hundred dollars intending to carry this amount of money with him to St. Louis. He and the president of the bank discussed the advisability of carrying this amount with him, and this official advised him not to do so, but assured him that he (the bank president) could put this sum in the National Bank of Commerce in an easier and more expeditious way. This was finally agreed to between the parties, and complainant was given cashier's checks for two thousand, five hundred dollars. A few days thereafter complainant was advised that when he got to St. Louis he would have to pay exchange for having these cashier's checks cashed and sent his son to see the president, of the defunct bank, and on December 19, 1911, these cashier's checks were surrendered to the bank and a bill of exchange for one thousand, two hundred dollars issued by the Iuka Bank in favor of complainant and his account was credited with one thousand, three hundred dollars. The National Bank of Commerce of St. Louis was one of the correspondent banks of the defunct Iuka Bank. Some days after this, the Iuka Bank increased its deposit in the correspondent St. Louis bank about four thousand dollars. On January 6, 1912, the complainant returned to the Iuka Bank and obtained another bill of exchange on the same St. Louis bank for two thousand, five hundred dollars. A few days thereafter, complainant abandoned the idea of going to St. Louis and assigned the two bills of...