DocketNumber: Appeal, No. 256
Citation Numbers: 128 Pa. Super. 258
Judges: Baldrige, Cunningham, James, Keller, Parker, Rhodes, Stadteeld
Filed Date: 7/15/1937
Status: Precedential
Modified Date: 2/18/2022
Opinion by
This action arose out of the same facts as those in
The findings of fact to Avhich exceptions were taken are as follows:
“VI. Henry J. Myers, for the four year term prior to the first Monday of January, 1933, was the duly appointed and acting Treasurer of the Borough of Millers-town, but did not file a bond with surety conditioned for the prompt accounting for and paying over all moneys of the Borough which came into his hands as Treasurer.*261 There is no evidence that the Council ever fixed the amount of his bond or that the Burgess ever demanded that he file a bond.
“VII. The Burgess and Council did not designate the Millerstown Deposit Bank depository of the funds in suit, or of any other funds of the Borough, coming into the hands of the Treasurer.
“VIII. The Burgess and Council of the Borough did not open or cause to be opened on the books of the Bank this account or any account with the Borough.
“IX. Henry J. Myers, Treasui’er of the Borough, received the taxes levied and collected for the payment of this issue of Funding Bonds, from the Tax Collector of the Borough, and placed the money so received into and with the moneys of the bank of which he was President and active Manager, and caused to be carried on the books of the bank by the clerks of the bank this account headed STREET BOND ACCOUNT, which account showed balances in favor of the Treasurer or the Borough, to-wit: December 1, 1932 $2573.41, and January 9, 1933 $2867.41.
“XII. The appraisal filed by the Receivers shows that the entire amount of cash in the Bank on the day it closed January 12, 1933 to be $6982.87, less checks cleared January 11, 1933, by the Mellon National Bank $5166.87, or $1816.00.”
The findings of fact by a chancellor, when approved by the court, are conclusive if the evidence supports them. Goodman v. Goodman et al., 122 Pa. Superior Ct. 8, 11, 184 A. 306.
As stated in Austin-Nichols & Co., Inc., v. Union Trust Co. et al., 289 Pa. 341, at page 348, 137 A. 461, at page 463: “Whether a fund is to be treated as held in trust for a special purpose, or considered merely as a deposit, creating the relation of debtor and creditor, depends on the circumstances of each particular case.”
It is clear that the record in the instant case supports
The act of deposit by the treasurer of the appellant did not constitute the bank a trustee or impress the moneys with a trust inuring to the benefit of the appellant or Mershon as a bondholder. The bank had title to this fund on deposit to the same extent as to any other deposit. It went into the general funds of the bank, and became a part of its assets. It was not held in a fiduciary capacity any more than the funds on deposit in the four other accounts set up by the treasurer and in which borough taxes received by him from the collector were credited. The deposit in question was a bank account made to be drawn against, and the evidence shows that it represented various transactions.
We agree with the conclusions of law as made by the
“2. The account on the books of the Bank established the relation of debtor and creditor between the Millerstown Deposit Bank and the Borough of Millers-town.”
The facts in the instant case are readily distinguishable from those in the cases cited by the appellant. Peak v. Ellicott, 30 Kan. 156, 1 P. 499, 46 Am. Rep. 90, is not analogous, and its distinguishing characteristics are set forth in Reicheldifer's Appeal, 115 Pa. Superior Ct. 454, 461, 176 A. 52, and need not be repeated here. Rogers Locomotive & Machine Works v. Kelley et al., 88 N. Y. 234, In re Interborough Consol. Corp., 288 F. 334, People v. City Bank of Rochester, 96 N. Y. 32, McKee v. Lamon, Adm’r., et al., 159 U. S. 317, 40 L. Ed. 165, Guidise v. Island Refining Corp., 291 F. 922, Sinclair Cuba Oil Co., S. A., v. Manati Sugar Co. et al., 2 F. Supp. 240, are all distinguishable on their facts, and none supports appellant’s contention. There is nothing in the case at bar to show that the funds were no longer subject to the control of the appellant. True, they were placed in a separate account by the treasurer of appellant, but there was no agreement whereby the appellant relinquished control or the bank agreed to accept the funds in trust for a particular purpose and no other.
Appellant apparently relies strongly on Reicheldifer's Appeal, supra, but it is not controlling. In that case the trust company was the agent of the assignor of a mortgage for the sole purpose of transferring the mortgage, collecting the consideration and paying it to
In the instant case the deposit was made by the treasurer of the appellant borough, who was the legal custodian of the borough taxes. As treasurer he was a depositor of the bank, having set up five accounts in which the borough taxes were credited. The bank did not hold the fund without authority or consent. Its deposit merely created between the bank and the appellant the relation of debtor and creditor. The bank had title to the deposit, and it was a part of its assets.
Those cases which deal with the tracing of trust funds have no application, as in the instant case the deposit was not in the first instance impressed with a trust.
Assignments of error are overruled.
The order of the court below is affirmed; appellant to pay the costs.