Olinger v. Sanders
| Decision Date | 30 January 1931 |
| Docket Number | No. 14146.,14146. |
| Citation | 174 N.E. 513,92 Ind.App. 358 |
| Parties | OLINGER v. SANDERS. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Dubois Circuit Court; John L. Sumner, Judge.
Petition by Raymond P. Olinger against James O. Sanders, receiver of the Huntingburg Bank, asking that claim be allowed as a preferred claim. Judgment was entered allowing the claim as a general claim, and petitioner appeals.
Affirmed.
Eldo W. Wood, of Huntingburg, and William D. Curll, of Petersburg, for appellant.
Leo H. Fisher, of Huntingburg, for appellee.
Appellant, as a creditor of the Huntingburg Bank, filed his petition in the Dubois circuit court, asking that his claim be allowed, and ordered paid by appellee, receiver of said bank, as a preferred claim. This petition was transferred to the trial docket, trial was had, the claim was allowed as a general claim and ordered paid as such. Judgment was entered accordingly. Motion for a new trial was overruled. From said judgment this appeal is taken.
The following facts are disclosed by the record: The appellant was a contractor engaged in constructing a bridge pursuant to a contract with the state highway commission of Indiana. At 3:30 o'clock p. m. on February 20, 1929, appellant deposited with the Huntingburg Bank, which was a bank of discount and deposit, a voucher payable to his order, drawn by the auditor of state, upon the treasurer of state for the sum of $4,597.20, also a check payable to appellant, issued by the Marquette Cement Manufacturing Company for the sum of $304. At the same time of making said deposit, appellant filled out a deposit slip, upon a form which was in use and furnished by the bank to its customers. It was in words and figures as follows:
“Huntingburg Bank.
“In receiving items for deposit and collection, this bank acts as depositor's collecting agent and assumes no responsibility beyond the exercise of due care. All items are credited subject to final payment in cash or in solvent credits. This bank will not be liable for deposits (default) or negligence of its duly selected correspondents nor for losses in transit, and each correspondent so selected shall not be liable except for his own negligence. This bank or its correspondents may send items directly or indirectly to any bank including the payor, and accept its draft or credit as conditional payment in lieu of cash, it may charge back any item any time before final payment, whether returned or not, also any item drawn on this bank not good at close of business on day deposited.
“Under this agreement, items listed below are hereby deposited by R. P. Olinger.
Huntingburg, Ind. Feb. 20, 1929.
“See that all checks and drafts are indorsed.”
Appellant had been a customer of the Huntingburg Bank and had maintained a checking account there for some time previous to the date of the transactions above mentioned. Upon February 20, 1929, before making deposit of the two items he had a balance in his checking account of $65.02. Upon the same day of the receipt of the state voucher and check by the bank, from appellant, the bank gave him credit in his passbook for the sum of $4901.20 and entered the amount on the individual ledger sheet to his credit. Upon the same day, the state voucher, which had been indorsed by appellant, “R. P. Olinger,” was, together with the other items, mailed by the Huntingburg Bank to its correspondent, the Fletcher American National Bank of Indianapolis. On February 21, 1929, the Fletcher American National Bank indorsed said voucher, “Paid,” charged it to the account of the treasurer of state, and placed the amount thereof, to wit, $4,597.20, to the credit of the Huntingburg Bank. On February 22, 1929, which was a legal holiday, the bank was not open for business. On the morning of February 23, 1929, the Huntingburg Bank was closed because of insolvency, and the appellee was thereafter appointed as receiver. The amount received from the state voucher passed into the hands of the appellee as receiver of the bank as part of its assets and he now has possession thereof. On February 20, 1929, the appellant drew five checks against his account amounting to the sum of $82.37. Upon February 21, 1929, he drew five checks against his account amounting to the sum of $74.47. All these checks were paid by the Huntingburg Bank and charged to the appellant's account upon the same day upon which they were written. Appellant had, on several occasions previous to this, deposited state vouchers of the same kind in the Huntingburg Bank. They had never been held up or returned for nonpayment. He testified that he did not intend to check against the amount of the state voucher until it had cleared, but he did not communicate this fact to any of the officers of the bank.
The only error assigned is, “That the court erred in overruling appellant's motion for a new trial.”
The reasons alleged for a new trial are: (1) That the decision of the court is not sustained by sufficient evidence; (2) that the decision of the court is contrary to law.
[1] 1. The issue of fraud was not tendered in the pleadings, nor was there any evidence introduced upon the trial of the cause, tending in any way to show that there was any fraudulent conduct, upon the part of any one connected with the operation of the Huntingburg Bank, which induced the appellant to deposit the state voucher with the bank. That issue therefore is not in this case. Union National Bank v. Citizens' Bank (1899) 153 Ind. 44, 54 N. E. 97, 100;Barger v. Stults (Ind. App. 1930) 172 N. E. 549.
[2][3][4] 2. The state voucher was a negotiable instrument, Burns' 1926, § 11360, and the indorsement “R. P. Olinger” was a blank indorsement, Burns' 1926, § 11393.
The rule applying to bank deposits in this state, in the absence of some special agreement, was well stated by Jordan, C. J., in the case of Union National Bank v. Citizens' Bank, supra, as follows:
The above rule is in harmony with the great weight of authority, and since that date the decision by Chief Justice Jordan has been adheredto by this court in the following cases: Shopert v. Indiana National Bank, et al. (1908) 41 Ind. App. 474, 83 N. E. 515;Second National Bank v. Gibboney (1909) 43 Ind. App. 492, 87 N. E. 1064;Downey v. National Exchange Bank (1911) 52 Ind. App. 672, 96 N. E. 403;Beard v. People's Saving Bank (1913) 53 Ind. App. 185, 101 N. E. 325.
[5] 3. Where the facts and circumstances accompanying the deposit indicate an understanding between the parties that the check, draft, voucher, or other instrument is deposited for collection only, the weight of authority is to the effect that the title does not pass to the bank in which the deposit was made. Shopert v. Indiana National Bank, supra; Downey v. National Exchange Bank, supra. See note to Fourth National Bank v. Bragg (Va.) 11 A. L. R. 1034.
[6][7] 4. Whether or not a deposit was a general or special deposit, and what the intention of the parties really was, is a question of fact for the court or jury trying the case to determine, from all the evidence as to custom, course of dealing, understanding, and circumstances of the particular case under investigation. And when the evidence is conflicting it will not be reviewed by the Appellate Court. Union National Bank v. Citizens' Bank, supra; Downey v. National Exchange Bank, supra; Fourth National Bank v. Bragg, supra; Baldwin State Bank v. National Bank of Athens, 144 Ga. 181, 86 S. E. 538;Spooner v. Bank of Donalsonville, 144 Ga. 745, 87 S. E. 1062;Sternberg v. Crohon & R. Co., 172 N. C. 731, 90 S. E. 935;Washington Shoe Mfg. Co. v. Duke, 126 Wash, 510, 218 P. 232, 37 A. L. R. 611;Weed v. Boston & M. R. R., 124 Me. 336, 128 A. 696, 42 A. L. R. 487;Bromfield v. Cothran, 86 Colo. 486, 283 P. 45, 68 A. L. R. 722.
The courts seem to be quite well agreed upon this proposition; but in their application of the various tests as determining factors in ascertaining the intention of the parties, there is a conflict of authority.
5. When there is no definite understanding between the depositor and bank, some of the most salient facts considered by those courts, holding that title to a check, draft, or voucher passes immediately to the bank upon deposit and upon which their opinions seem to be founded, are the following: That the indorsement is not restricted; that the depositor is immediately given credit for the amount on his passbook, and upon the books of the bank; that he is immediately given the right to check against the deposit; that he does actually check against the same; and that the checks are presented and paid. And as was suggested in the case of In re Ruskay (C. C. A.) 5 F.(2d) 143, 151, the interpretation placed upon the transaction by the parties themselves is given great weight in determining their intention; the court, speaking through Judge Rogers, saying: ...
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