Troike v. Cook County Savings Bank

Mb. Reesiding Justice Smith

delivered the opinion of the court.

Appellant in argument bases his right to a decree on three grounds: First, that a trust attached to the funds, deposited with Schumacher which followed the funds in the hands of the bank; second, that the check for $2,500 amounted to an equitable assignment of the funds in the bank to the credit of Schumacher to the extent of the amount of such credit; and third, that under the circumstances equity will rescind the entire transaction between complainant and Schumacher and hold the money as belonging to complainant.

The only testimony in the case is that of complainant and Henry D. Schumacher, a brother and clerk of deceased, O. 0. Schumacher. The other evidence in the case consists of the books and papers evidencing the transactions in question.

Eudolf Troike, the complainant, testified that he went to Henry D. Schumacher on Friday, May 1, 1903, and turned in a check for $300 and currency for $400 and also turned over the note and mortgage for $1,100. Schumacher had collected $700 previously. This made altogether $2,500 for which he gave complainant a check and at the same time stated that he could draw the money on it at any time. Complainant had agreed with one Bourke to make him a loan and gave him (Bourke) the check. He testified to the account of Charles C. Schumacher as it' appeared from the books of the bank and as stated in the pleadings; and that Charles C. Schumacher died on the following Sunday morning.

Henry D. Schumacher testified to the same effect substantially and that he was a brother of Charles C. Schumacher and his clerk; that he made up a deposit on Saturday, not including the currency on hand, but did not get an opportunity to go to the bank. He deposited the check on Monday morning, the cash remaining in the drawer; that the complainant had money on deposit with his brother of $700 and interest, which went into the bank with other money; that on May 4th there were other checks deposited .amounting in all to $703 and some cents.

This evidence shows simply a general deposit of funds .and checks with Schumacher with the understanding and expectation on the part of complainant that the check on the bank which he received for his money and securities would be honored when he should present it to the bank for payment. There appears nowhere in the transaction any understanding or agreement that the money, the proceeds of the checks and notes, should be kept by Schumacher as a special deposit and not mingled with his own funds. On the contrary, the evidence tends to show that Schumacher was to deposit the money with his other funds in the bank, with the implied agreement that Schumacher should keep a sufficient balance in the bank to meet the check when it should be presented. The check for 02,500 given to complainant shows on its face that it was drawn on a general deposit account, not on a special account. This further tends to show that complainant understood that the money would be deposited in a general deposit account to the credit of Schumacher in the Cook County State Savings Bank. This necessarily meant that it would be mingled with the other funds of Schumacher deposited in that account, and negatives the idea of a special deposit or trust fund in the bank.

Under such a state of facts the money cannot be followed as a trust fund in the hands of the bank. When deposited by Schumacher it created the relation of debtor and creditor as between the bank and Schumacher. Wetherell, Assignee, v. O’Brien, 140 Ill. 146; Halle v. National Park Bank, 140 id. 413. And under the facts shown such was the relation created as ' between Schumacher and complainant.

The bank was under no obligation to pay the check when presented, inasmuch as Schumacher did not have sufficient money on deposit to his credit with which to pay the check in full. Coates v. Preston, 105 Ill. 470; Brown v. Schintz, 202 id. 509; Rouse v. Calvin, 76 Ill. App. 362.

No notice of the- rights and interest of complainant in the money deposited by Schumacher" was given to the bank, and hence it was not bound to regulate its action with reference to any right or lien of which it was uninformed.

The Chicago Title & Trust Company, administrator, has not assigned cross-errors on the record, and as the administrator is the only one who is affected by the action of the bank in applying the money on deposit to the payment of notes held by the bank against Schumacher, that action or its legal or equitable results are not before us.

We think the decree is just, and it is accordingly affirmed.

Affirmed.