Zelle v. German Sav. Institution
| Decision Date | 30 October 1877 |
| Citation | 4 Mo.App. 401 |
| Parties | F. E. ZELLE ET AL., Appellants, v. GERMAN SAVINGS INSTITUTION, Respondent. |
| Court | Missouri Court of Appeals |
The rights of a check-holder and of the bank are fixed when the check is presented for payment, and the bank has no right to pay or satisfy out of the fund thus appropriated other checks or demands subsequently presented, or demands which subsequently accrued to the bank or others; nor can the bank retain the money against the check-holder under claim of an equitable lien for a debt by the drawer, not yet matured.
APPEAL from St. Louis Circuit Court.
Reversed and remanded.
M KINEALY, for appellant, cited: McGrade v. German Savings Institution, ante, p. 330; Fourth National Bank v. City National Bank, 68 Ill. 398.
FINKELNBURG & RASSIEUR, for respondent: Equitable setoff.-- Dammon v. Boylston Bank, 5 Cush. 194; Waterman on Set-off, 149; Ford's Administrator v. Thornton, 3 Leigh 695; Reppy v. Reppy, 46 Mo. 571; Field v. Oliver, 43 Mo. 200; Laidley v. Jackson, 2 Paige 581; Aldrich v. Campbell, 4 Gray 284.
The facts in this case are precisely the same as those in the case of McGrade v. German Savings Institution decided by this court at its last term. That case went off on a nonsuit at the close of plaintiff's testimony; no instructions being asked, except one in the nature of a demurrer to the evidence. Counsel for respondent think that the instructions in the present case raise more distinctly the question of the right of equitable set-off in the bank. That question was considered in the opinion in the McGrade case. Counsel for respondent, however, think that it was not necessary to a decision of that case, and that what fell from the court as to that matter, in delivering the opinion should be regarded rather as obiter dictum than as a decision of the question directly raised in this case by the refusal, on the part of the trial court, of the following instruction, asked by plaintiff:
" If the check sued on was drawn by Fletcher & Co. or the person doing business under that name, and was delivered to plaintiff by said Fletcher & Co. for value received, and if said check was presented for payment to defendant, and defendant, at the time said check was presented for payment, was doing business as a banker, and had in his possession, on current deposit, money of said Fletcher & Co. sufficient to pay said check, and all other checks of said Fletcher & Co. then outstanding or payable, then the court declares the law to be that, on the evidence in this cause, the defendant was not entitled, as against plaintiff, to apply said money of said Fletcher & Co. to the payment of the note for $10,000, made by said Fletcher & Co., and held by defendant, but not then due."
The court then gave judgment for defendant...
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