Dumond v. Merchants National Bank , 1889 Ill. App. LEXIS 323 ( 1889 )

Moran, J.

On December 18, 1884, the firm of Ed Brown

& Tipton deposited in the Union Stock Yards National Bank $1,182.30, with a deposit ticket as follows: “ Deposited with Merchants National Bank of Chicago, Illinois, to the credit of Exchange Bank, Earlville, Illinois, by Ed Brown & Tipton for the use of George W. Dumond, $1,182.30.

“ Date December 18, 1884.”

On the same day the Union Stock Yards National Bank delivered to the Merchants National a check for a large sum, which was paid through the clearing house on December 20th. This check was accompanied by the deposit ticket, which showed that $1,182.30 of the sum included in the check was for account of the Exchange National Bank, Earlville, Ill., but it was not stated that it was for the use of appellant. On December 20th, appellant presented to the Merchants National Bank the following letter from the Exchange Bank of Earlville:

"Exchange Bank, William Wilson & Co.,

Earlville, Ill., Dec. 30, 188-.

John O. Nelly, Esq., Cashier.

Dear Sir:—Deposit of eleven hundred and eighty-two and 30-100 dollars by Stock Yards National for use of G. W. Dumond, we can not receive, as we had closed our doors before it reached you. You will therefore deliver to him the amount, his signature is here (G. W. Dumond), or to his order.

Respectfully yours,

William Wilson & Oo.”

The Merchants National Bank refused to pay the amount to Dumond, and this action is brought to recover it, as money had and received by the bank which belongs to Dumond, and which the bank ought not to retain.

The same circumstances that have occurred in this case with reference to appellant’s money, existed in Drovers National Bank v. O’Hare, 119 Ill. 646, as regarded the money of O’Hare. The Northwestern National Bank held the same position in relation to O’Hare in that transaction that appellee does to appellant in this one. In answer to the contention of counsel in that case, that the action should have been brought against the Northwestern National Bank, the Supreme Court gave the following expression:

“ We are of opinion the suit was properly brought. The Northwestern National Bank had no notice whatever that the check of appellant represented money belonging to appellee, or that appellee was in any wise interested therein. It never consented to become his debtor, or to become the depositor of funds for his use, and received the money without notice that it was charged with such use. The check purported to transfer to the Northwestern National Bank, funds of the Henry Bank, going to general account to the credit of the Henry Bank by the Northwestern National Bank. Them was no privity of contract between the Northwestern National Bank and appellee. The transfer was made to that bank without his authority or consent, nor did the Northwestern National Bank consent to act as trustee in respect of this money, for its transmission to the Henry Bank, for his use. No action would lie by appellee to recover of the Northwestern National Bank.”

Counsel for appellant in this case contended that the question before the Supreme Court in the case in which the language quoted was used, was the liability of the Drovers National Bank, and not that of the Northwestern; and that what was said in the opinion on the latter question was merely dictum,, and ought not to control this court on the question as now directly presented, and counsel have cited a number of cases which appear to give substantial and authoritative support to their contention that appellee is liable to appellant in an action for money had and received under the facts of this case. It may be that Drovers Bank v. O’Hare could have been decided without reference to the liability of the Northwestern National Bank, but the question was made in the briefs of counsel, and received attention and consideration from the court, and whatever might be our view on the authorities, if the question was clearly open to us, we do not feel at liberty to disregard the clear expression of the Supreme Court, given advisedly on a question made in argument, though not necessary to the decision, as we might, do in a case where the expression was inadvertent and uncalled for. We prefer to govern the action of this court by the opinion of the Supreme Court as expressed, and leave counsel to urge in that court the arguments which support their client’s right to recover notwithstanding Drovers National Bank v. O’Hare. The judgment of the Supreme Court will be affirmed.

Judgment affirmed.

Gaby, J., takes no part in deciding this case.