Goodyear Tire & Rubber Co. v. Hanover State Bank , 109 Kan. 772 ( 1921 )

The opinion of the court was delivered by

Mason, J.:

The Goodyear Tire & Rubber Company, of Akron, Ohio, held a trade acceptance — in effect a draft — for $1,364.50, on Poell Brothers, of Hanover, Kan., which was sent for collection to the Hanover State Bank, of that place. On May 13, 1920, the bank presented the draft to Poell Brothers, who gave in exchange for it their check upon the bank, where they carried a checking account sufficient to meet it, the bank having more than enough cash on hand for the purpose. The check was at once charged to the account of Poell Brothers, and the bank mailed its cashier’s check for the amount to a bank in Chicago through which the collection had been received.. On May 17, 1920, and before the cashier’s check in the usual course of business had been presented to the Hanover State Bank for payment, that bank was closed, being taken charge of by Dugald Spence, a deputy bank commissioner, who was afterwards appointed receiver. The rubber company brought this action against the Hanover State Bank and its receiver, asking that the receiver be adjudged to hold the amount of such draft (less a remittance charge) in trust for it, and that its claim be given preference over those of ordinary creditors. On an agreed statement of facts judgment was rendered declaring it to be a general creditor only, and it appeals. •

The parties agree upon the test by which the matter is to be' determined: In order for the plaintiff to have a preferred claim upon the estate in the hands of the receiver it must appear that the proceeds of the check in some form reached his hands, and that the assets brought under his control were larger by that amount than they would otherwise have been. While there has been much difference of judicial opinion on the subject, some of which still remains, that is now the generally accepted view (3 R. C. L. 638; 26 R. C. L. 1355; Notes, L. R. A. 1916C, 21, L. R. A. 1917F, 603), and the one adopted in this state. (Investment Co. v. Bank, 98 Kan. 412, 158 Pac. 68, and cases there cited.) The present controversy turns upon the application to be made of that test.

When the bank was closed it had $6,971.95 in cash and its books showed $54,444.58 in sight exchange, the actual amount being less than that, but in excess of fifty per cent of it. If Poell Brothers, instead of paying the draft upon them by check, had used currency for the purpose there can be no doubt that the receiver would hold the amount in trust for the plaintiff, for the total of cash or its equivalent which came into his hands would necessarily or at all events presumptively have been that much larger by reason of such payment. The court is of the opinion that the rule applies that where a payment to a bank is made by a check drawn thereon the result is the same as though the depositor had presented his check, received- the money over the counter, and then used it in making the payment. That rule has often been announced. (Washbon v. Bank, 87 Kan. 698, 125 Pac. 17; 2 Morse on Banks and Banking, 5th ed., § 451, and cases cited in note.) In Bank v. Bank, 62 Kan. 788, 64 Pac. 634, a situation was presented having at least some analogy to that now under consideration. There a bank which soon after failed, held for collection a check on another bank in the same town which it used in effecting the daily clearing between the two banks, paying the difference in cash. The owner of the check sued to have his claim given a preference. The receiver urged that the failing bank had used the check merely to pay its .indebtedness and therefor the estate to be administered had not been increased. His contention was denied, the court holding that the transaction involved what was in effect the collection of the check in cash.

The court is also of the opinion that the effect of Poell Brothers .giving the bank their check in exchange for the draft upon them was the same as though they had drawn out the money at some other time, and for some other purpose, but had used it for paying the claim against them. It follows from these views that the money belonging to the plaintiff must be regarded as having passed into the hands of the receiver, increasing by that amount the assets to be administered by him, and that the plaintiff is entitled to reclaim it as a trust fund.

The judgment is reversed and the cause remanded with directions to render judgment for the plaintiff, giving it preference over general creditors.