We are grateful to counsel for the concise and systematic manner in which they have presented what would otherwise have been a very formidable record.
The Iowa State Savings Bank finally closed its doors on the evening of April 17, 1924. A receiver was appointed. Some 25 or 26 claims for preference, aggregating $41,870.86, were allowed, 9 of which are before us on this appeal.
I. The claims of the Massachusetts Bonding Insurance Company, 1. BANKS AND Hal Summers, and F.A. Martin are founded on BANKING: drafts and cashiers' checks purchased by insolvency: claimants. The instruments were presented for preference: payment after the bank closed, and payment draft and refused. These claims are ruled by Leach v.
check Mechanics Sav.
holders. Bank, 202 Iowa 899; Leach v. Iowa St. Sav. Bank (Iowa), 211 N.W. 515 (not officially reported); Andrew v. Chicago, M. St. P.R.Co. (Iowa), 211 N.W. 515 (not officially reported); Leach v.Exchange St. Bank, 203 Iowa 790; Leach v. Iowa St. Sav. Bank,202 Iowa 894; Leach v. Battle Creek Sav. Bank, 202 Iowa 871; Leach v.Battle Creek Sav. Bank, 203 Iowa 507; Leach v. Citizens' StateBank, 203 Iowa 782; Leach v. Citizens St. Bank, 202 Iowa 879;Leach v. Battle Creek Sav. Bank, 202 Iowa 875; Danbury St. Bankv. Leach, 201 Iowa 321; Leach v. Iowa St. Sav. Bank, 202 Iowa 95. Preference for these claims should have been denied, and the order allowing them must be reversed.
II. The Bankers Trust Company placed travelers' checks with the defendant bank for sale, with instructions to remit to claimant, immediately on sale, "the full face plus one fourth of one per cent New York exchange or any exchange upon a 2. BANKS AND central reserve city." The defendant bank sold a BANKING: number of the checks, and remitted by draft upon insolvency: its Chicago correspondent. The draft was not preference: presented until after the defendant bank had draft closed its doors. Payment was consequently remittance: refused. The defendant was authorized to make effect. remittance by Chicago draft; and under the authorities above cited, claim for preference should have been disallowed. Allowance thereof must, therefore, be reversed.
III. Claim of Mrs. O.C. Servis. The finding of the referee on this claim is as follows:
"The basis of this claim is for interest collected by the bank and belonging to this claimant. The claimant had purchased from the bank various real estate mortgages, and had permitted the bank to collect the interest thereon and hold 3. BANKS AND the same for the account of the claimant. These BANKING: transactions had occurred during a number of insolvency: years prior to the time of the closing of the preference: bank. Mrs. Servis or her agent, after the unauthorized collection of interest by the bank, would call draft or at the bank and receive the payment of the check interest, delivering coupons if the interest was remittance: represented by interest coupons. Collections so effect. made over the period in which these transactions occurred amounted to considerable sums. Various collections were charged in the real estate loan account and were paid with
checks out drawn by the bank upon that account, and delivered to the claimant. In many instances cashier's checks were written, at the time or soon after the interest items were paid, and held at the bank until claimants called for them. The bank either had direct or implied authority from this claimant to make these particular collections of interest.
"Conclusions of Law. Under the recited facts and the record, it appears that no trust relation existed between this claimant and the bank, and that the claim is not entitled to preference. It is recommended that the claim be allowed as a general claim only."
The evidence is meager, but we are of the opinion that no such course of business between the bank and Mrs. Servis is shown as to raise any inference that she agreed to accept the bank's credit or liability, as evidenced by its cashier's checks, either as a substitute for the interest liability of the mortgagors or for the money paid by them for the interest. The bank was claimant's agent to make the collections. Its duty, in the absence of a sufficient showing to the contrary, was to collect the money and pay it over to claimant. We think the evidence is insufficient to show that she waived the bank's duty to pay over the money, or that she agreed that moneys collected for her might be mingled with the bank's assets and that she would accept the bank's credit for it. For these reasons and those later set out in connection with the claims of H.H. Dwight and others, the preference should be allowed, but prorated.
IV. State Bank of Omaha claim. On April 15, 1924, the State Bank of Omaha forwarded to the defendant bank for collection checks aggregating $5,015.59. The defendant was directed to collect the checks and remit the proceeds. The 4. BANKS AND checks were all drawn on other banks. They were BANKING: received by the defendant bank on April 16, insolvency: 1924, and presented through the local clearing preference: house. The balance of the clearings on that date dissipation was in favor of the defendant bank to the amount of trust of $2,600, for which amount a draft was issued funds. to the defendant bank. The defendant did not receive cash. It received only the $2,600 draft, and sent it to the National City Bank of Chicago for credit. Defendant thereupon remitted to the claimant its own
draft on the National City Bank for the amount of the collection, $5,015.59.
On April 16, 1924, the Omaha bank forwarded to defendant for collection and remittance checks on other banks, aggregating $7,731.56. These were received on the 17th and presented through the clearing house. The balance on the clearings that day was against the defendant, so that it actually received nothing in the form of cash or draft for the checks. Defendant remitted to the Omaha bank its draft on the National City Bank for the amount of the checks, $7,731.56. The defendant's balance sheet for April 16, 1924, showed a credit balance in Chicago of $1,939.50, and for April 17, 1924, a debit balance or overdraft of $12,174.51. The books of the Chicago bank for that date showed a credit balance in favor of the defendant bank of $17,893.09, because drafts drawn by the defendant had not yet been presented. The defendant bank was owing the Chicago bank over $100,000 on bills payable. The Chicago bank applied the book credit of $17,893.09 on this indebtedness, and refused payment of the drafts issued to claimant and the other drafts in transit. The defendant bank had no authority to remit to the Omaha bank by the draft, and the receiver does not deny the relationship of principal and agent between the Omaha bank and defendant. The error assigned is in finding that the proceeds of the collections have come into the hands of the receiver, and that the receiver's assets were thereby augmented. Claimant relies on Messenger v. Carroll Tr. Sav. Bank, 193 Iowa 608. In that case claimant had forwarded to defendant bank for collection sight draft on defendant's customer.
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We are grateful to counsel for the concise and systematic manner in which they have presented what would otherwise have been a very formidable record.
The Iowa State Savings Bank finally closed its doors on the evening of April 17, 1924. A receiver was appointed. Some 25 or 26 claims for preference, aggregating $41,870.86, were allowed, 9 of which are before us on this appeal.
I. The claims of the Massachusetts Bonding Insurance Company, 1. BANKS AND Hal Summers, and F.A. Martin are founded on BANKING: drafts and cashiers' checks purchased by insolvency: claimants. The instruments were presented for preference: payment after the bank closed, and payment draft and refused. These claims are ruled by Leach v.
check Mechanics Sav.
holders. Bank, 202 Iowa 899; Leach v. Iowa St. Sav. Bank (Iowa), 211 N.W. 515 (not officially reported); Andrew v. Chicago, M. St. P.R.Co. (Iowa), 211 N.W. 515 (not officially reported); Leach v.Exchange St. Bank, 203 Iowa 790; Leach v. Iowa St. Sav. Bank,202 Iowa 894; Leach v. Battle Creek Sav. Bank, 202 Iowa 871; Leach v.Battle Creek Sav. Bank, 203 Iowa 507; Leach v. Citizens' StateBank, 203 Iowa 782; Leach v. Citizens St. Bank, 202 Iowa 879;Leach v. Battle Creek Sav. Bank, 202 Iowa 875; Danbury St. Bankv. Leach, 201 Iowa 321; Leach v. Iowa St. Sav. Bank, 202 Iowa 95. Preference for these claims should have been denied, and the order allowing them must be reversed.
II. The Bankers Trust Company placed travelers' checks with the defendant bank for sale, with instructions to remit to claimant, immediately on sale, "the full face plus one fourth of one per cent New York exchange or any exchange upon a 2. BANKS AND central reserve city." The defendant bank sold a BANKING: number of the checks, and remitted by draft upon insolvency: its Chicago correspondent. The draft was not preference: presented until after the defendant bank had draft closed its doors. Payment was consequently remittance: refused. The defendant was authorized to make effect. remittance by Chicago draft; and under the authorities above cited, claim for preference should have been disallowed. Allowance thereof must, therefore, be reversed.
III. Claim of Mrs. O.C. Servis. The finding of the referee on this claim is as follows:
"The basis of this claim is for interest collected by the bank and belonging to this claimant. The claimant had purchased from the bank various real estate mortgages, and had permitted the bank to collect the interest thereon and hold 3. BANKS AND the same for the account of the claimant. These BANKING: transactions had occurred during a number of insolvency: years prior to the time of the closing of the preference: bank. Mrs. Servis or her agent, after the unauthorized collection of interest by the bank, would call draft or at the bank and receive the payment of the check interest, delivering coupons if the interest was remittance: represented by interest coupons. Collections so effect. made over the period in which these transactions occurred amounted to considerable sums. Various collections were charged in the real estate loan account and were paid with
checks out drawn by the bank upon that account, and delivered to the claimant. In many instances cashier's checks were written, at the time or soon after the interest items were paid, and held at the bank until claimants called for them. The bank either had direct or implied authority from this claimant to make these particular collections of interest.
"Conclusions of Law. Under the recited facts and the record, it appears that no trust relation existed between this claimant and the bank, and that the claim is not entitled to preference. It is recommended that the claim be allowed as a general claim only."
The evidence is meager, but we are of the opinion that no such course of business between the bank and Mrs. Servis is shown as to raise any inference that she agreed to accept the bank's credit or liability, as evidenced by its cashier's checks, either as a substitute for the interest liability of the mortgagors or for the money paid by them for the interest. The bank was claimant's agent to make the collections. Its duty, in the absence of a sufficient showing to the contrary, was to collect the money and pay it over to claimant. We think the evidence is insufficient to show that she waived the bank's duty to pay over the money, or that she agreed that moneys collected for her might be mingled with the bank's assets and that she would accept the bank's credit for it. For these reasons and those later set out in connection with the claims of H.H. Dwight and others, the preference should be allowed, but prorated.
IV. State Bank of Omaha claim. On April 15, 1924, the State Bank of Omaha forwarded to the defendant bank for collection checks aggregating $5,015.59. The defendant was directed to collect the checks and remit the proceeds. The 4. BANKS AND checks were all drawn on other banks. They were BANKING: received by the defendant bank on April 16, insolvency: 1924, and presented through the local clearing preference: house. The balance of the clearings on that date dissipation was in favor of the defendant bank to the amount of trust of $2,600, for which amount a draft was issued funds. to the defendant bank. The defendant did not receive cash. It received only the $2,600 draft, and sent it to the National City Bank of Chicago for credit. Defendant thereupon remitted to the claimant its own
draft on the National City Bank for the amount of the collection, $5,015.59.
On April 16, 1924, the Omaha bank forwarded to defendant for collection and remittance checks on other banks, aggregating $7,731.56. These were received on the 17th and presented through the clearing house. The balance on the clearings that day was against the defendant, so that it actually received nothing in the form of cash or draft for the checks. Defendant remitted to the Omaha bank its draft on the National City Bank for the amount of the checks, $7,731.56. The defendant's balance sheet for April 16, 1924, showed a credit balance in Chicago of $1,939.50, and for April 17, 1924, a debit balance or overdraft of $12,174.51. The books of the Chicago bank for that date showed a credit balance in favor of the defendant bank of $17,893.09, because drafts drawn by the defendant had not yet been presented. The defendant bank was owing the Chicago bank over $100,000 on bills payable. The Chicago bank applied the book credit of $17,893.09 on this indebtedness, and refused payment of the drafts issued to claimant and the other drafts in transit. The defendant bank had no authority to remit to the Omaha bank by the draft, and the receiver does not deny the relationship of principal and agent between the Omaha bank and defendant. The error assigned is in finding that the proceeds of the collections have come into the hands of the receiver, and that the receiver's assets were thereby augmented. Claimant relies on Messenger v. Carroll Tr. Sav. Bank, 193 Iowa 608. In that case claimant had forwarded to defendant bank for collection sight draft on defendant's customer. The customer had a credit balance on checking account of ample amount, and gave to defendant its check thereon for the amount of the sight draft. The bank had ample cash on hand. The amount of the sight draft was remitted to claimant in the form of Chicago exchange. This was held to be the equivalent of the payment of cash on the check and the payment of the cash on the sight draft. To apply the doctrine of that case to this, we would have to hold that what was done here was the equivalent of the presentation by defendant of the checks owned by claimant, to the banks on which they were drawn, the receipt of the money thereon by defendant, the placing of it in defendant's till, the increase thereby of defendant's cash assets, and
remittance in Chicago exchange. The proven fact is, however, that claimant's particular property was specifically used in paying the defendant's debts to its depositors and to the National City Bank. The checks owned by claimant were not drawn on defendant.
The checks owned by the Omaha bank and remitted to the defendant for collection were used in the payment of checks held by other banks and drawn on the defendant bank, except as to $2,600. The $2,600 was received by the defendant in the form of a draft, and that specific draft was remitted to Chicago and was applied to the payment of the indebtedness of the defendant bank to the Chicago bank. The defendant got no cash for the checks received from the claimant. The only fund that it received was the $2,600, and that did not become a part of defendant's cash or of any fund that has come into the hands of the receiver. The claimant bank has no standing to claim a preference merely as a creditor. It makes no difference that its claim as a creditor is founded upon fraud, conversion, or breach of trust. The claimant has no standing other than as the owner of property which came into the possession of the defendant bank, and thence into the possession of its receiver. If the property of the Omaha bank did not find its way, either specifically or through substitution of other property, into the possession of the receiver, the claim to a preference cannot be sustained. To obtain a preference, the claimant "must show, by presumption of law or otherwise, that his fund has been preserved in the hands of the assignee, as an increase of the assets of the estate, from which it may be taken without impairment of the rights of general creditors." Bradleyv. Chesebrough, 111 Iowa 126. See, also, Farnsworth v. MuscatineProd. P.I. Co., 177 Iowa 21; Hanson v. Roush, 139 Iowa 58;First St. Bank v. Oelke, 149 Iowa 662; Stilson v. First St. Bank,152 Iowa 724; Hudspeth v. Union Tr. Sav. Bank, 197 Iowa 913.
Payment of debts is not, of itself, such an increase of assets. For instance, if the deposits amounted to $500,000, and the assets available for their payment to $250,000, the depositors would get 50 per cent. If $50,000 of the assets were used to pay checks or deposits to that amount in full, while the deposits would be reduced to $450,000, the assets available for their payment would be reduced to $200,000, and the remaining
depositors would get only 44 per cent plus. If the $50,000 were taken to pay claims other than those of depositors, then the depositors, though, under the law, preferred creditors, would be postponed, to that extent, to other creditors, and get only 40 per cent. The evidence shows affirmatively that the plaintiff's property did not augment the assets in the possession of the bank, and did not come into the possession of the receiver. Idem;Leach v. State Sav. Bank of Logan, 202 Iowa 265; Jones v.Chesebrough, 105 Iowa 303; Board of Fire Water Com. v.Wilkinson, 119 Mich. 655 (78 N.W. 893); City of St. Paul v.Seymour, 71 Minn. 303 (74 N.W. 136); Slater v. Oriental Mills,18 R.I. 352 (27 A. 443); Bank Commissioners v. Security Tr. Co.,70 N.H. 536 (49 A. 113). The claim of the Omaha State Bank for a preference should have been disallowed, and the order sustaining it must be reversed. This conclusion makes it unnecessary to discuss claimant's appeal from the nonallowance of interest.
V. Claims of H.H. Dwight, Metropolitan Life Insurance Company, and Mechanics Metals National Bank. These may be considered together. Dwight's claim is similar to that of Mrs. Servis. The evidence fails to show any authority, express or 5. BANKS AND implied, to the bank to make remittance by BANKING: cashier's checks or drafts. The record is that insolvency: Dwight was not a depositor. His instructions to preference: the bank were to remit to him the interest as it nonchange in was collected. He was in Florida. The bank made trust funds. out its cashier's checks for Dwight's interest, but without authority from him, and filed them with his securities. He found the checks with his papers when he got them from the bank after the bank had closed.
The Metropolitan Life Insurance Company placed funds with 6. BANKS AND defendant to be paid out for specified first BANKING: mortgage loans then being negotiated, when liquidation: designated conditions were complied with. The equitable Metropolitan Life Insurance Company did not trust: carry a general deposit account with defendant. presumption: The money was placed to the credit of the real prorating estate department of the bank, to be paid out in intermingled accordance with the conditions named. It was trust funds. mingled with the other moneys of
the bank. This money as a whole was drawn on in the ordinary course of the bank's business.
The Mechanics Metals National Bank sent to defendant notes for collection. Defendant made collections, and issued and retained in its files cashier's checks for the amount of the proceeds. In the Dwight case, we must hold that the collections were received as agent, and that defendant had no authority to substitute its obligation for the money which it held as agent. In the Metropolitan Life Insurance Company and Mechanics Metals National Bank cases, the agency or trust relationship is conceded. In all three cases, the question is whether there was an augmentation of the funds in the possession of the bank which came into the hands of the receiver, and if so, the extent of such augmentation. In each case, the funds are treated, in the record and arguments, as money received by the defendant bank. As the case is presented, we must treat such funds as having become a part of the cash balances in the possession of the bank. There is no evidence that they were transmuted into any other form of property, and we cannot presume that they were. We cannot presume, for instance, that they were remitted to the National City Bank, and there dissipated in the appropriation of the credit balance to the payment of defendant's drafts and bills payable. Defendant carried accounts with numerous correspondents, the balances in which fluctuated greatly, and we cannot presume that claimants' funds became a part of those balances. The only finding that can be made is that the funds, as stated, became a part of the cash balance on hand. The case is one of an acknowledged trust relationship. In such case, the burden of proof, or more correctly, the burden of going on with evidence from this point to follow the funds and show 7. APPEAL AND dissipation, is with the receiver. Hudspeth v.
ERROR: Union Tr. Sav. Bank, 197 Iowa 913; Murray v.
review: North Liberty Sav. Bank, 196 Iowa 729; Lusk Dev.
scope and Imp. Co. v. Giinther, 32 Wyo. 294 (232 Pac. extent: 518). The cash on hand when the bank closed is non-parties shown to have amounted to $12,136.94. The record to appeal. shows the allowance of a large number of preferences, the greater number of which are not before us for review. We can make no determination that will prejudice the rights of the holders of those claims. As to the three claims under consideration
and the Servis claim, however, the preference should be allowed pro rata against the amount of cash that came into the hands of the receiver, without prejudice to the rights of claimants who have not been brought into this court by appeal. Hewitt v. Hayes,205 Mass. 356 (137 Am. St. 448, 91 N.E. 332, 334).
With this modification, the allowance of preferences to H.H. Dwight, Mechanics Metals National Bank, and Metropolitan Life Insurance Company is affirmed. The case is remanded for further proceedings not inconsistent with this opinion. — In partaffirmed; in part reversed and remanded.
EVANS, C.J., and De GRAFF and ALBERT, JJ., concur.
SUPPLEMENTAL OPINION.