Love v. Kraft-Phenix Cheese Corporation

• Decision Date: 08 February 1932
• Docket Number: 29693
• Citation: 162 Miss. 460,139 So. 393
• Court: Mississippi Supreme Court
• Parties: LOVE, SUPERINTENDENT OF BANKS, et al. v. KRAFT-PHENIX CHEESE CORPORATION

139 So. 393

162 Miss. 460

LOVE, SUPERINTENDENT OF BANKS, et al. v. KRAFT-PHENIX CHEESE CORPORATION

No. 29693

Supreme Court of Mississippi

February 8, 1932

Division A

1. BANKS AND BANKING. Relationship between depositor of draft for collection and bank held that of principal of agent, and therefore bank received proceeds in trust, entitling depositor to preferred claim on bank's insolvency.

Bank acknowledged receipt of draft, receipt stating that bank credited amount of draft to depositor's account and entered draft for collection. Acknowledgment further gave depositor notice that bank in receiving items for collection acted only as depositor's collecting agent and assumed no responsibility beyond the exercise of due care, and that all items were credited and subject to final payment in cash or solvent credits.

2. BANKS AND BANKING. Bank which cashed checks drawn against draft before collection thereof acquired either ownership of draft or lien thereon for advances.

Bank's right to lien for amount advanced to depositor of draft Is in accord with the law of agency, under which an agent in possession, by virtue of his agency, of property belonging to his principal, who advances money to principal, for purposes connected with the agency, acquires, not the ownership of the property, but a lien thereon.

HON. A B. AMIS, SR., Chancellor.

APPEAL from chancery court of Newton county HON. A. B. AMIS, SR. Chancellor.

Proceedings by the Kraft-Phenix Cheese Corporation against J. S. Love Superintendent of Banks and M. L. Thompson, liquidating agent of the Citizens' Bank of Newton. From a decree in favor of the petitioner, the latter appeals. Affirmed.

Affirmed.

Flowers, Brown & Hester, of Jackson, for appellant.

The question to be decided is whether or not the draft of the Kraft-Phenix Cheese Corporation was deposited "for collection" or "for credit" as designated by a great many courts and writers "for deposit."

An ordinary deposit in a bank is a loan of the funds to the bank, and such funds so deposited, become the property of the bank and the relation of debtor and creditor exists between the bank and the depositor.

Rice v. Webb, 105 So. 854; Moreland v. Peoples Bank of Waynesboro, 74 So. 828.

A customer of a bank, who deposits checks or drafts upon other banks with his bank, which gives him credit therefor in his general account, which is subject to check, thereby transfers the title to the checks or drafts to the bank, and renders it his debtor to the amount credited to him therefor in the absence of an agreement to the contrary.

Security National Bank v. Old National Bank, 241 F. 1.

Where checks and drafts are endorsed and deposited and are accepted as cash they become the property of the bank and the bank becomes the debtor of the depositor in the amount of such checks even though it is understood that the bank has the right to charge back the amount if the paper deposited proves uncollectible.

7 C. J. 635, sec. 314.

Where a bill of lading and draft are deposited with a bank in the usual course of business instead of being deposited for collection and there is not proof of fraud, it will be presumed that such deposit was like any other deposit, being subject to check, wherefore the bank had title to the money involved.

Sears v. Emerson, 182 Ill.App. 522.

The banking usages have grown up as a part of the settled law of the land.

The effect of custom on the rights of the parties is well expressed that the custom of a bank may be proved to interpret, but not to establish, a contract.

Harper v. Calhoun, 7 How. 203; Note 21 A. L. R. 440.

Ordinarily, where paper is indorsed without restriction by a depositor and is at once placed to his credit by the bank, the inference is that the bank has become the purchaser of the paper and in making the collection is not acting as the agent of the depositor.

Equitable Trust Co. v. Rochling, 27 L.Ed. 264, 275 U.S. 248; Aebi v. Bank, 68 L. R. A. 964; Heinrick v. Bank, 113 N.E. 531, L. R. A. 1917A, 655; Bryant v. Williams, 16 F.2d 159.

Where payee endorses a check and deposits it in a bank, with which he was in the habit of dealing, according to the business forms under which transactions of that character are usually conducted. The legal effect of such conduct, where no reservations are made or limitations are imposed by either party, and no agreement or understanding appears other than that which the law implies, is well settled by the best considered cases. When the payee of the check received credit for it, the bank became indebted to him in a sum equal to the amount of the credit, his funds in the bank subject to immediate withdrawal upon his check were augmented to the same extent, the check itself became the property of the indorsee, and the payee's relation to it became that of one who had transferred title to it by indorsement. If the depositor had desired to establish the relation of principal and agent between himself and the depository, he should have indorsed the paper for collection merely, or otherwise should have indicated his purpose, and, if the bank did not intend to accept the check as money, it should have entered it as paper, and not as cash, or otherwise should have made manifest its intention to collect merely.

Noble et al. v. William Doughton, 83 P. 1048, 3 L. R. A. (N. S.) 1167.

While there is not entire uniformity of opinion, the weight of authority supports the view that upon the deposit of paper unrestrictedly indorsed, and credit of the amount to the depositor's account, the bank becomes the owner of the paper notwithstanding a custom or agreement to charge the paper back to the depositor in the event of dishonor.

City of Douglas v. Federal Reserve Bank of Dallas, 70 L.Ed. 1051, 271 U.S. 489; Plumas County Bank v. Rideout, Smith & Company, 131 P. 360, 47 L. R. A. (N. S.) 552; Bank of Gulfport v. Smith, 95 So. 785.

Where bank bills are credited at their face to their depositor, and are treated by the depository as money, the bank receiving them becomes a debtor to the depositor for the full amount, although the currency may at the time be depreciated.

Marine Bank v. Fuller Bank, 2 Wall. 252.

If the depositor understands that the bank proposes to receive the paper as money, and assents, expressly or by acquiescence, it would seem that he consents to part with the title to the paper.

St. Louis & S. F. Ry. Co. v. Johnston, 27 F. 243; H. & B. Beer v. Chickasha Nat. Bank, 26 F.2d 39; Bryant v. Williams, 16 F.2d 161.

The holder of a draft or other negotiable paper payable to or indorsed to him is presumed to have a bona-fide title to, and to have paid value for it, and the burden of showing to the contrary is upon him who asserts rights to the proceeds thereof or sets up defenses against it.

Colonial Lumber Co. v. Andelusia National Bank, 138 Miss. 566, 103 So. 343.

It appears to be the uniform holding of the courts that commercial paper sent "for collection" is notice to all parties that the forwarding bank is not the owner of the paper, while many authorities hold that the words "for collection" and "credit" used by a forwarding bank in sending a draft payable to its order, to its correspondent bank, indicate that the forwarding bank is the owner of the paper, and gives the collecting bank the right to apply such paper to the debt of the forwarding bank.

Shawmut Bank v. Barnwell, 140 Miss. 816.

Alexander & Alexander, of Jackson, for appellees.

Under the deposit slip the bank originally received the check for collection under the terms as therein stated. By the issuance of this slip it did not become a holder for value.

Bank of Gulfport v. Smith, 95 So. 785.

In the absence of a special agreement the deposit in bank to the credit of a customer of drafts or checks drawn on another bank is, as a general rule, deemed to be for collection merely, and if they are returned dishonored the bank may return them to the depositor and cancel the credit. So where promissory notes are sent to or deposited in a bank for collection, the relation of principal and agent is created and not that of debtor and creditor. Having received the note for collection the bank does not owe the amount to the depositor until collected, though it may give him credit on its books therefor; such a credit may be treated as provisional and if the paper is afterwards dishonored the credit may be canceled. And the same is true where a certificate of deposit issued by one bank is deposited with another. Nor will the mere fact that the depositor is allowed to check against the credit change the import of the transaction, so as to preclude the bank from charging back the amount of the credit if the check deposited is not paid. The bank may permit, as matter of favor and convenience, checks to be drawn against it before payment; the depositor, in the event of non-payment, being responsible for the sums drawn, not by reason of his indorsement, the check not having ceased to be his property, but for money paid.

3 R. C. L. 552 and 563.

The mere crediting of a depositor's account with the full amount of a draft does not constitute the bank a bona-fide purchaser of the draft.

Colonial Lumber Co. v. Andelusia National Bank, 138 Miss. 566, 103 So. 345.

That the title does not pass, in case of paper sent by one bank to another for collection, is true although the receiving bank credits the emitter with the amount of the check as cash and so informs the remitter.

Tyson v. Bank, 77 Md. 412; National Park Bank v. Seaboard Bank, 114 N.Y. 28, 20 N.E. 632; Bank v Hubbell, 7 L. R. A. 852, 15 Am. St. Rep. 515, 22 N.E. 1031; First National Bank v. Reno County Bank, 3 F. 257; Bank v. Ingram, 33 Okla. 46, 124 P. 64; Winchester v. Bank, 120 Tenn....