Drovers National Bank v. Clemmer

57 Ill. App. 107, 1894 Ill. App. LEXIS 228

Opinion

Mr. Justice Gary

delivered the opinion of the Court.

What may be called the fireside equities of this case seem to me to be altogether with the appellees, but we are constrained to say that the law is against them.

There are several individuals, or firms, having separate interests, who shipped from Iowa, stock to the firm of Hanna, Son & Co., commission merchants, at the Union Stock Yards in Chicago, to be sold, and the proceeds to be sent to them severally.

Hanna, Son & Co. kept an account with the appellant, and the mode in which such proceeds got into the possession of the appellant, was, that a purchaser from Hanna, Son & Co., gave to them a ticket showing the purchase, and how many dollars and cents it amounted to, which ticket Hanna, Son & Co. deposited with the appellant as so much cash, and the appellant collected the amount from the purchaser.

The amount of the proceeds belonging to the' appellees is $4,859, and the amount in the bank which this bill is filed to obtain is $3,475.

The deposits made in the bank on the last day that Hanna, Son & Co. did business with it was $12,379.21, so that on that day they had checked out nearly $9,000. The proceeds of one shipment went into the bank two days before, but the residue went in on that last day. Without reference to the claim which the appellant makes to apply the- money to indebtedness held by the bank, we are obliged to hold that no trust in favor of the appellees attached to the balance in the bank standing, or which ought to stand—conceding the ought without expressing any opinion upon it—to the credit of Hanna, Son & Co. That an action for money had and received would not lie in favor of either of the appellees against the bank seems to be proved by the case of Carpen v. Hall, 27 Ill. 386, reaffirmed in 29 Ill. 512, with the names reversed.

And that money mixed with other money loses its identity and can not be followed as a trust fund, is a doctrine often repeated by the Supreme Court.

Most of the prior cases are referred to in Mutual Accident Ass’n v. Jacobs, 141 Ill. 261. We tried to get away from it in O’Brien v. Wetherell, 41 Ill. App. 142, but the Supreme Court held us to it on appeal. Wetherell v. O’Brien, 140 Ill. 146. The decree is reversed and the bill dismissed.