State v. American State Bank

• Decision Date: 28 March 1922
• Docket Number: 21981
• Citation: State v. American State Bank, 108 Neb. 98, 187 N. W. 759 (Neb. 1922)
• Parties: STATE OF NEBRASKA v. AMERICAN STATE BANK. BENJAMIN W. SPRINGER. APPELLEE, v. A. F. ACKERMAN, RECEIVER, APPELLANT
• Court: Nebraska Supreme Court

187 N.W. 759

108 Neb. 98

STATE OF NEBRASKA v. AMERICAN STATE BANK. BENJAMIN W. SPRINGER. APPELLEE, v. A. F. ACKERMAN, RECEIVER, APPELLANT

No. 21981

Supreme Court of Nebraska

March 28, 1922

APPEAL from the district court for Hamilton county: EDWARD E.GOOD JUDGE.Affirmed.

AFFIRMED.

Charles E. Matson, for appellant.

Hainer Craft & Edgerton, contra.

Heard before MORRISSEY, C. J., ALDRICH and ROSE, JJ., HOBART and PAINE, District Judges.

OPINION

ROSE, J.

This is a controversy between A. F. Ackerman, receiver of the American State Bank of Aurora, Nebraska, an insolvent corporation, and Benjamin W. Springer, claimant, as a depositor.

In a proceeding by the state of Nebraska to wind up the affairs of the bank, Springer filed a claim for a balance of $ 42,375.30.The deposit in controversy was never entered on the books of the bank as a credit in favor of Springer and he pleaded fraud in that respect.The receiver objected to the allowance of the claim on the ground that Springer entrusted his fund to his own agent, the Wentz Company, a corporation that deposited it in its own name and checked it out before knowledge of Springer's equities reached the bank.In a cross-petition the receiver also demanded judgment against Springer for $ 2,500 on a promissory note which he had executed and delivered to the bank.Upon a full hearing the district court found the issues in favor of Springer and allowed his claim as a depositor for a balance of $ 39,737.80, after deducting his debts, including the amount due on his note.The receiver has appealed.

Questions of agency and imputed knowledge are presented by the appeal and require a more detailed statement of the case.

Benjamin W. Springer, claimant, owned a farm on the edge of Aurora.Acting for himself without an agent he sold it to August Matson for $ 54,000, June 14, 1919.The purchaser paid $ 3,000 down and gave his note for $ 2,000.The balance due Springer February 28, 1920, when the title to the farm was transferred to Matson, was $ 48,155, including interest.For that sum Matson then gave his check, payable to Springer.The proceeds of the check were received by the bank and paid out on checks of the Wentz Company.The claim in controversy is based largely on Springer's right to credit as a depositor on the books of the bank for the amount of this check.

The American State Bank commenced business as a commercial enterprise March 8, 1918.An officer of the state took charge of it in an insolvent condition March 17, 1920, and was succeeded by Ackerman, receiver, May 14, 1920.The bank has not since been open for the transaction of a general banking business.From May 18, 1918, until the closing of the bank Springer transacted business with it as a depositor.

The Wentz Company was a corporation dealing in real estate, farm loans, mortgages and insurance.With it Springer had transacted business at intervals for a number of years.

Charles W. Wentz was vice-president and managing officer of the bank.It had a president in name only.It had a cashier, but he recognized Wentz as the superior officer and deferred to him.In some capacity Wentz had exclusive control and management of the Wentz Company.The business of both corporations was generally transacted in the same building with Wentz the controlling spirit in both enterprises.The transactions of the corporations were more or less intermingled.The bookkeepers in the bank kept the books for the Wentz Company.The two corporations occupied the same room and used the same counter, the same vault and the same safe.Each paid half the office rent.The officers of the Wentz Company were officers of the bank.A stamp used by Wentz in indorsing checks for the bank was used by him to indorse papers for the Wentz Company.There was no public sign to identify the corporate hand that manipulated the business devices used by Wentz in disbursing the funds of bank depositors.

The contract for the sale of the farm was drawn by Wentz in his bank and was executed there, he being a witness.On the books of the bank and on the pass-book of Springer the cash payment of $ 3,000 was credited to his account as a depositor.Within a short time Wentz drew a warranty deed in the bank.Later it was executed by Springer and left there in escrow for Matson upon payment of the balance of the purchase price.

Springer and Matson, vendor and purchaser, met in the bank February 28, 1920, and agreed on the balance of the purchase price including interest--$ 48,155.Matson said the cashier of the First National Bank of Aurora would attend to the payment.Springer told Wentz to take the deed over to that bank, to bring back the check and to credit it to the account of Springer in the American State Bank.To this Wentz assented.The Wentz Company was not mentioned.Afterward Wentz went a block or more to the First National Bank, delivered the deed, and returned to his own bank with a check in the following form:

"Aurora, Nebr., Febr. 28th, 1920.

"First National Bank.

"Pay to Ben. W. Springer or order $ 48,155.00 forty-eight thousand one hundred fifty-five & no/100 dollars.

"August Matson."

On the back Wentz indorsed the check thus:

"Credited to account of Benj.W. Springer, 2/28/20."

The name "Benj.W. Springer" is in the handwriting of Wentz, who entered upon a deposit slip of his bank a credit in favor of the Wentz Company for $ 48,155.The check was never indorsed by Springer, the...