frsbog_mim_v28_0535.pdf

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X-6077

Opinion rendered April 25th,

1928. ,

tiv

In the Supreme Court of Florida,

January Term, A.D. 1928.

Division' £ ;

The Atlantic National Bank of

Jacksonvil le ,

a;

corporation

organized and existing under

th e banking laws of the United

States,

Appellant,

v .

Frederick 3 . Pratt , a s Receiver

of the Bank of South Jac kso nvi lle ,

a corporation organized and exi s t -

in g

under

the

laws

of the

State

of

Florida, Arroellee.

Duval County.

WHITFIELD, P. J.

The amended b i l l of complaint in effect alleges that th e Bank of

South Jacksonville

was the

regular correspondent

of the

complainant,

the

Atlantic National Bank; that on January 10, 1927 and January 11, 1927 , th e

complainant sent

to thp

Bank

o f

South Jac kso nvi lle

fo r

col l ec t ion

and re -

mittance i n accordance with the usual custom between the two banks, checks

an d

other items payable

by and at or

drawn

on the

Florida Southside Bank;

that on December 31, 1926, complainant sent to the South Jacksonville Bank

f o r col lect ion and remittance , a draft due January 10, 1927; that on

January 10, 1 927, th e draft was paid to the Bank of South Jacksonville by

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chock on t he Fl or id a Southside Bank; th at on t he 11 t h a nd 12 t h o f January,

1 9 2 7 t h e Bank o f South Jac kso nvi l le col le ct ed from t h e Florida Southside

Bank

a l l o f

said i tems

o r

checks

a n d

c o l l e c t e d

a n d

actual ly rece ived f rom

t h e

Fl or id a Southsi de Bank 11,171.70

i n

payment

f o r

said items

a n d

checks

tha t t h e said Bank o f South Ja ck so nv il le sent complainant i n payment o f

said items

i t s

checks

o r

dr a f t s payab le

to

complainant, drawn

on i t s Hew

York correspondent

and on

complainant,

a nd a t t h e

same time sent

com-

p l a i n a n t i t s checks o r drafts drawn on the Barnett National Bank o f

J a c k s o n v i l l e ,

a

nat ional banking corpora t ion,

on t he

Peoples Bank

o f

J a c k s o n v i l l e ,

t o

make good

i t s

check

o r

d r a f t

on

comp lai nan t. That

said checks o r drafts drawn on t he said Barnet t nat ional Bank o f Jackson-

v i l l e and on said Peoples Bank o f Jacksonville were' each dishonored by t he

sa id bank refus ing

t o pa y t he

same,

a n d

sa id

Hew

York draft

w as

likewise

dishonored. The said Bank o f South Jac kson vi l le d i d n o t have t h e funds

t o i t s

credit with complainant

t o p a y t h e

check

o r

draft drawn

on com-

pla inan t un less

t h e

checks

o r

drafts drawn

on t he

said Barnet t National

said

Bank

o f

Jacksonvil le

and

the/peoples Bank

o f

Jacksonville were paid.

That

on the 13th day of

January,

1 9 2 7 t h e

said Bank

o f

South Jackson-

v i l l e c l o s e d

i t s

doors . F reder ic k

B .

P r a t t

w as

appointed receiver

f o r

sa id bank. That t h e said Bank o f South Jac kso nvi l le i s inso lven t and

w as insolvent both a t t h e time i t received a n d a t t h e time i t co l l ec ted

t h e

aforesaid checks from

t h e

Florida-Southside Bank.

And

complainant

d i d n o t know that t h e said Bank o f South Jac kso nvi l le w as i n s o l v e n t a t

said time; that complainant h a s made demand on t he defendant receiver

f o r t h e

sa id

sum of

Eleven Thousand

One

Hundred Seventy-one

a n d

70/100

Doll ars ( 11,171.70) a s pre fe ren t i a l c l a im , payab le be fore t h e unsecured

claims against t h e said Bank o f South Jac ks on vi l le a r e pa id . Complainant

fu r the r c l a ims tha t

i t h a s a

p r e f e r e n c e

on t he

a s s e t s

o f t he

said Bank

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- 3 - X-6077

5

of

South Jac ksonvi lle

fo r the

payment

of the

items herein mentioned.

But the

defendant,

a s

receiver

a s

aforesaid,

h a s

refused

to

allow

com-

plainant

1

s claim f o r said items a s a pref ere ntia l claim and to pay same

before paying th e unsecured claims. That th e claim of complainant has

been admitted

by the

defendant

a s a

lawful

an d

just claim against

the

assets i n h i s hands, except as to the preference of said claim; that

the money received by the Bank of South Jacks onvi ll e from th e said

Florida-Southside Bank

was

received

by

said Bank

a s a

trust fund

and

that t i t le to said checks at no time passed to the said Bank o f South

Jacksonville; an d that th e amount of money so col lected by the said

Bajfik

o f

South Jac ksonvi lle swe lled

the

funds

of the

said Bank

o f

South

Jacksonville; that the relat ion o f debtor and creditor di d no t arise

between complainant and the said Bank o f South Jacksonville by reason of

said collect ions.

By amendment i t i s alleged that the said Bank o f South Jack-

sonvi l le had with complainant a real credit balance o f Eleven Hundred

Seventeen and 94/100 Dollars ($1117.94) on the 13th day of January, 1927,

at the

time

i t s

affairs were taken over

by the

Comptroller.

And by further amendment the b i l l o f complaint alleges that i t

wap the custom an d understanding between complainant and the said Bank o f

Sop.th Jacksonville at the time the items heretofore mentioned were sent

to said Bank o f South Jac ksonvil le f o r co ll ec ti on , that said Bank o f

South Jacksonville should remit to complainant the amount o f money c o l -

the

lepted each

day on the

day/same

was

co ll ec te d. That there

was no

under-

standing by agreement o f custom between th e said Bank.of South Jackson-

v i l l e an d complainant that complainant should give any credit or allow

th e

said Bank

o f

South Jacksonville

any

latitude

in the

time

o f

remit-

ting f o r items sent f o r col lect ion by complainant, That complainant kept

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- 4 - ,

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5 8

no account with th e said Bank of South Jac kso nvi lle and had no credit

balance with said Bank

of

South Jack sonv ille ;

and

there were

no

reciprocal

or

mutual accounts

of any

kind between complainant

and the

said Bank

o f

South Jacksonville.

The prayer i s that complainant be decreed a pre fe re nt ia l claim

over unsecured creditors

of the

Bank

o f


and f o r

general

r e l i e f .

The

defendant receiver demurred

on

grounds that:

1 . Said las t amendment adds no new matter and is immaterial

and

irrelevant.

2. The

issue attempted

to be

raised

by

said amendment

has

already been decided

by

this court

in

this cause adverse

to

complainant.

3 . Said amended b i l l of complaint shows o n i t s face that com-

plainant

i s n o t

ent i t l ed

to a

preference.

4 . I t

does

not

appear that complainant

i s

able

to

trace

and

locate any trust fund.

5 . I t

appears from

th e

allegations

of

said amended b i l l

of

complaint that complainant

i s a

general

and not a

preferred creditor.

6. I t appears from th e al legat ions of sa id amended b i l l o f

complaint that title

to

said check

a n d i t s

proceeds passed

to the

Bank

of


an d

that

th e

relation

of

principal

and

agent

had

ended.

7 . I t appears from the al legat ions of said bi l l of complaint

that said Bank of South Jack son vil le was used by the complainant a s i t s

collecting agent

f o r

many itens

and was

authorized

to

c o l l e c t

and

mingle

funds,

an d

that said Bank

o f

South Jack son vil le

was

indebted

to the com-

plainant upon a balance o f accounts and was under no obligation t o f o r -

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- 5 - X-6077

ward to the complainant any specific funds,

8 . I t appears from th e al legat ions of the amended b i l l of

complaint that complainant accepted from said Bank

o f

South Jacksonville

th e draft or check o f said Bank of South Jack son vil le i n payment of the

items mentioned in the amended b i l l of complrint.

The

court', sustained

the

demurrer

on the 3rd, 5th , 6th and

7 t h

grounds.

The complainant appealed.

Where A. bank remits to B. bank several items o f negotiable

paper

fo r

col lect ion

and

remittance according

to the

custom

an d

under-

standing between the banks, v i z : that B. bank should remit to A. bank

the amount o f money collected each day on the day the same was collected ,

and 3. bank co ll ec ts th e several items from other banks or persons and re-

mits

to A.

bank checks

of . E ..

bank

on

other banks

fo r the

amounts

of the

col le ct io ns ,b ut such checks a re no t paid in due course because of the

fa i lure of B. bank after making th e col lect ions and af te r remitting i t s

checks therefor, but before th e checks of B. bank a re paid, an d there was

no commingling of funds by consent and no reciprocal accounts or deposits

between

the two

banks,

3 .

bank having

no

account with

a

balance

to i t s

credit with A. bank but A. bank having no account with B. bank, A. bank

i s ent i t l ed to a preference in payment by the receiver o f 3 . bank fo r th e

collections made.

See

State

Hat ,

Bank

o f

Little Hock

v .

P.N.Bank

o f

Achison

Kan. 124 Ark. 53 1, 187

S.W.Rep.

673;

Bank

of

Poplar Bluff,

v s .

Mills, Pough., 3 13 Mo. 41 2, 281 S.W.Hep. 733, Fed Re s. 3k. of Rich. v .

Pejers 139 7a . 45 , 123 S.E.Rep. 379, 42 A.L.R. 742 .

Reversed.

Rerrell

and

Buford

J . J . ,

Concur.

E l l i s , C. J . and Strum and Brown, J . J . , Concur in the opinion an d judgment.

frsbog_mim_v28_0535.pdf

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