W.H. Horney v. Covington County Bank, Dick Poling and Bob Poling v. Covington County Bank of Collins, Mississippi

725 F.2d 1006

37 UCC Rep.Serv. 1635

W.H. HORNEY, Plaintiff-Appellant,
v.
COVINGTON COUNTY BANK, Defendant-Appellee.
Dick POLING and Bob Poling, Plaintiffs-Appellants,
v.
COVINGTON COUNTY BANK OF COLLINS, MISSISSIPPI, Defendant-Appellee.

Nos. 82-4255, 82-4307.

United States Court of Appeals,
Fifth Circuit.

Feb. 27, 1984.

James N. Compton, Carter O. Bise, Biloxi, Miss., for Dick and Bob poling.

Thomas W. Tyner, Hattiesburg, Miss., for W.H. Horney.

Frank D. Montague, Jr., F. Douglas Montague, III, Hattiesburg, Miss., for Covington County Bank.

Appeals from the United States District Court for the Southern District of Mississippi, William Harold Cox, Judge.

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

Before REAVLEY, and JOHNSON Circuit Judges, and WYZANSKI*, District Judge.

PER CURIAM:

1

By motion for rehearing Covington County Bank argues that we have ignored a case that held to the contrary of our decision at 716 F.2d 335, that prior case being Southern Cotton Oil Co. v. Merchants National Bank, 670 F.2d 548 (5th Cir.1982). In the prior case the Merchants Bank insisted it was only a collecting bank, and it was held to be that because its depositor did not demand or direct Merchants to pay the instrument. The mill manager for Southern Cotton Oil Co. prepared the draft on its customer and the draft was forwarded, without any acceptance by customer, to customer's bank. In our case the customer of Covington Bank signed the draft and directed it "to" the Covington Bank, giving the number of customer's account in that Bank. That made Covington Bank a drawee and payor bank. The case turns not so much on whether the draft was addressed both to Cattle Co. and the bank, but upon whether Cattle Co. demanded its Bank pay the item.

2

The Petition for Rehearing is DENIED and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Federal Rules of Appellate Procedure and Local Rule 35) the Suggestion for Rehearing En Banc is DENIED.

*

District Judge of the District of Massachusetts, sitting by designation