Opinion
Nos. 25614 and 25615
Decided June 3, 1936.
Banks and banking — Liquidation — Deposits general and not special, when — Bank agent of express company in selling travelers cheques — Relationship debtor and creditor, when — Demand for and refusal to pay deposit does not create preference — Bank selling travelers cheques holds money as agent of express company, when — Relationship of agency not converted into debtor, when — Deposit of uninvested trust funds in commercial department not preferred — Rule inapplicable to transaction permitted by bank without trust powers — Not neceseary to identify particular money in tracing trust funds — Presumption that payment not made from fiduciary funds — Travelers cheques paid for by purchaser's check — Not shifting of credit, but augmentation of assets, and fund traceable — Preferred claims share pro rata with other preferred claims, when — Total amount of preferences cannot exceed minimum cash, when — Preferred creditors not entitled to interest, when.
1. Where money is deposited in a bank for a special purpose it is not for that reason alone a special deposit. To constitute a deposit special in nature there must be an agreement or understanding between the depositor and depositee that the money deposited is not to be used in the business of the bank. In the absence of such agreement the deposit is general and not special.
2. A bank, employed by an express company to sell travelers cheques in its behalf, acts as agent in making such sales, but where the agreement of employment provides that the proceeds of sales shall be credited to the express company by the bank, and requires a memorandum, showing the amount of money credited to the express company for each day's business and in such form that the latter may have a record of sales included in the total deposit, and there is no understanding that the money shall not be used in the business of the bank, the relation of debtor and creditor arises between the bank and express company upon the making of the deposit, and this relationship is not altered by the fact that after the making of such agreement the bank, on receiving travelers cheques from time to time, signed a receipt on which was printed a stipulation that the "cheques until sold and the proceeds thereof when sold shall at all times remain the property of the express company."
3. The mere fact that a general depositor demands that the depositee bank pay to him the amount of his deposit and the bank fails or refuses to comply therewith and thereupon goes into liquidation does not create a preference in favor of the depositor.
4. A bank employed by a principal to act as agent in the sale of travelers cheques and to remit to the principal the proceeds, but without authority from the principal to hold on deposit the money paid as the purchase price or to give credit therefor on the books of the bank, continues to hold the money as agent, at least until remittance by draft or other bank exchange, or until the relation is terminated by operation of law or act of the parties.
5. The relationship of agency is not converted into that of debtor through remittance by the principal to the agent by bank exchange where there are manifestations of an intention to the contrary.
6. The rule laid down in McDonald, Admr., v. Fulton, Supt. of Banks, 125 Ohio St. 507, relative to the power to change the relation of trustee and cestui to that of debtor and creditor, by deposit, is applicable only to trust funds held for investment or distribution by a bank chartered under the laws of Ohio to do a trust business. The rule is not applicable to funds received by such a trust company as agent in a transaction which may be lawfully engaged in by a bank which does not have a trust charter.
7. In order to trace a trust fund into the cash in the vaults of an insolvent bank closed for liquidation it is not necessary to identify the particular money deposited nor to show that the amount purported to have been received was converted into specific cash, in cases where such amount is commingled with general funds of the bank. Such commingling does not of itself extinguish the right of the owner to follow and reclaim the fund or an equivalent amount.
8. In case a bank commingles funds held by it as trustee or agent with funds of its own, and pays out money from the common mass, the presumption is that it pays from its own money and not from funds held in a fiduciary capacity.
9. The collection or receipt of money by a bank as agent, through payment by a debtor or by a purchaser of travelers cheques by means of his own check on the collecting or receiving bank, the amount of which check is charged out of the funds which the debtor or purchaser has on deposit in that bank by entry on the bank's books, results in such an augmentation of assets that the fund may be traced and followed, and is not a mere shifting of credits. Where the payment is through checks on other banks there is augmentation through satisfaction of the checks by the banks on which they are drawn.
10. A claim so preferred must share pro rata with other preferred claims standing on the same footing, if the funds into which such claims are traced are insufficient to pay them all in full.
11. The total amount allowed for preferences cannot exceed the minimum amount of cash on hand at any time while the trust funds are commingled therewith.
12. Interest on the principal amount is not allowable to preferred creditors as against general creditors. (Paragraph 2 of the syllabus of Fulton, Supt. of Banks, v. B. R. Baker-Toledo Co., 128 Ohio St. 226, approved and followed.)
ERROR to the Court of Appeals of Lucas county.
Two actions were brought in the Court of Common Pleas of Lucas county, Ohio, by The American Express Company, a voluntary, unincorporated association, against the Superintendent of Banks and in each the prayer of the petition was for preference for the amount received from the sale of travelers cheques. One case involved The Commercial Savings Bank Trust Company, hereinafter referred to as the commercial bank, and the other, The Ohio Savings Bank Trust Company, hereinafter referred to as the Ohio bank, both of which were chartered under the laws of Ohio to do a trust business as well as general banking.
Both banks failed to open their doors for business after August 15, 1931, and on August 17, 1931, the Superintendent of Banks of the state of Ohio took possession of them for liquidation.
The cases were each submitted upon an agreed statement of facts with exhibits attached consisting of letters which passed between the parties.
In the commercial bank case the material parts of the correspondence by which the arrangement for sale of travelers cheques was made, are as follows:
On January 17, 1928, the express company wrote the commercial bank: "As advised in our telegram of the 14th, we are agreeable to allowing your bank to credit our account with the proceeds of sales of American Express Travelers Cheques during each month, with the understanding that you will send us on the last day of each month a draft on Chicago or New York for the total accumulated amount. * * *
"The procedure to be followed will be to send us purchaser's application on the day sale is made, accompanied by duplicate deposit slip showing credit to our account." (Italics ours.)
To which letter on January 18th, 1928, the commercial bank replied: "We are making now all necessary preparations, and we will start on this system on the 20th of this month, consequently the end of the month will always be on the 20th, and we will see that you shall receive a check together with the statement for the whole month. The sales advices will be forwarded to you promptly as usual, on day of sale, but we do not deem it will be necessary to send you a duplicate deposit slip, because that will only be a lot of extra work for us, and it does not mean anything as far as you are concerned. The amount deposited to your account you can obtain from the sales advices."
On January 26, 1928, the express company wrote:
"There are two items, however, that I am sorry I will have to call on you to change. One of them is that it will be necessary for you to forward a memorandum to us showing the amount of money placed to our credit on each day's business, which action is necessary in view of the fact that the application form you send us covering each sale is immediately sent to our Comptroller's Office in New York, and we have no record of the sales included in your total deposit if we find it necessary to check back the remittance sent us.
"The other item is that I would like to have you remit for the accumulated sales on the last business day of each month. This would mean that from January 20 up to and including the 31st would be one remittance, and the month of February and each succeeding month would be closed out when the month was completed." (Italics ours.)
There was no further correspondence until August 13, 1931, on which date the express company wrote the commercial bank:
"An analysis by our Management of the special arrangement which your good Bank enjoys, through which you hold as trust funds the proceeds of sales of our Travelers Cheques until the last day of each month, when you remit for the same, shows the arrangement to be unprofitable to our Company, and they desire to terminate it.
"On receipt of this letter, will you, therefore, kindly mail us tomorrow, August 14, a draft on Chicago for all accumulated sales of Travelers Cheques up to and including that date.
"We will let you know in the course of a few days what is desired as to remitting for future sales of Cheques."
On August 14, 1931, the bank wrote the express company:
"We are instructing our Travel Department to comply with your request in connection with your letter, and we will take the letter in question, and will be glad to have your advice as to just how you want us to handle these remittances in the fund.
"As the writer mentioned, because of the arrangement which we had with you, it has been the policy of our Travel Department to endeavor to prefer the sale of American Express Travelers Checks on any account, which we believe has been a decided advantage to you.
"We hope that because of this situation, you will reconsider your decision to rearrange this, and continue on as before."
On August 15, 1934, the bank replied further:
"I am rather surprised to receive this letter at this time of the year, when our previous agreement was made for the entire year; and besides, it is difficult for us to terminate this agreement in one or two days' notice, as we have the checks and the method of remitting placed in all of our branches; and in case of termination, it will require perhaps a couple of weeks of preparation, changing our entire system.
"As you are undoubtedly familiar, the agreement reads between ourselves that we were to sell $100,000.00 of American Express Checks; and since we came to the agreement, we have exceeded the sales of the above specified amount.
"Let us know at your convenience what your future methods of remitting will be, and also whether you are revoking your agreement with all the institutions, or making some exceptions."
Correspondence, making substantially the same arrangement as that found in letters prior to the one dated August 13, 1931, took place between the express company and the Ohio bank. Then the following correspondence ensued:
On August 13, 1931, the express company wrote a letter to the Ohio bank in substantially the same form as that written to the commercial bank by the express company on the same date with one exception. This letter referred to the proceeds of sales as trust funds, expressed a desire to terminate the authority to deposit the moneys in the hands of the bank, and demanded that a draft be sent for accumulated sales up to and including August 14, 1931. Included in the missive was the injunction "hereafter remit as sales are made," which was not in the letter to the commercial bank of corresponding date.
On August 14, 1931, the Ohio bank wrote the express company: "We enclose your statement of the period August 1st to 13th inclusive. It appears from this statement that we are receiving approximately six to eight deposits each day. The sources of which are sales at our different departments such as the main office and our sixteen branch offices. Therefore the thought occurred to us that it would be agreeable to you for us to allow these remittances to be accumulated together as formerly for each day's business and remit to you daily instead of monthly. In this manner you will receive one remittance for each day's sales rather than from six to eight remittances originating at the same number of different sources within our institution. However, we offer this only tentatively subject to your approval.
"Will you kindly communicate to the writer the result of your decision?
"We are enclosing our check $8,140.10 which according to the enclosed statement was the balance of your account at the close of business Aug. 13th." (Italics ours.)
On August 15th, 1931, the express company replied:
"It will be perfectly agreeable to us for you to follow the practice outlined in your letter, which we understand to mean that the sales from your main office and sixteen branches will be consolidated and a remittance made daily for the total amount of sales of the entire unit of the Ohio Savings Bank and Trust Company." (Italics ours.)
From time to time after the arrangements were made by correspondence the express company delivered to each bank travelers cheques for the purpose of sale and upon receipt of each allotment the receiving bank signed a so-called trust receipt as follows:
" Received in trust from the American Express Company, Travelers Cheques of the American Express Company, as follows: * * *
"The undersigned agrees and undertakes that the said cheques while in its custody shall have the same care and protection as its own bearer securities; and further agrees to accept responsibility for the due issue thereof and to account to the American Express Company therefor and for the proceeds received from the sale thereof. The said Cheques until sold and the proceeds thereof when sold shall at all times remain the property of the American Express Company." (Italics ours.)
Each of the banks was to receive a commission of one-half of one percent on its respective sales and no interest was to be paid on the proceeds while in the bank. The travelers cheques are in the nature of drafts, and when duly issued are valid obligations of the express company, and require only the signature or indorsement of the purchaser to make them negotiable. By general usage they are accepted widely in lieu of cash.
Proceeds of sales were commingled with general cash in the banks but of this fact the express company had no actual knowledge. Proceeds were credited to the express company on the books of the bank but no signature cards were furnished. No interest was paid nor payable by the banks, nor did the express company have the right to draw on the money deposited, by check or otherwise. The methods of bookkeeping employed were unknown to the express company except as disclosed by the correspondence.
Other facts are stated in the opinion.
On trial in the Court of Common Pleas judgment was entered for the defendant banks denying preference.
On appeal to the Court of Appeals that court on trial entered judgment for the express company allowing preference in each case but denying interest on principal.
A certification of the record was allowed in this court.
Mr. John W. Bricker, attorney general, Messrs. Brown Sanger and Mr. Sholto M. Douglas, for plaintiff in error.
Messrs. Tenney, Harding, Sherman Rogers, Messrs. Marshall, Melhorn Marlar and Mr. William W. Miller, for defendant in error.
Under Ohio law there are certain generic differences that should be observed in analyzing the legal theories pertaining to claims for preference. In the instant cases there are three distinct classes, which are directly or indirectly involved in determining the legal rights of the parties; first, claims for preference based on alleged special deposits; second, those founded on alleged agency of the bank; and, third, those growing out of the trusteeship of a banking institution with a trust charter, in holding trust funds for distribution. This classification is not necessarily exhaustive but is essential to clarity of thinking in the present inquiry.
The two cases at bar were argued and submitted together and each involves the question of preference with regard to the proceeds derived from the sale of travelers cheques. There is no question but that the defunct banking institutions were chartered to do both a banking and trust business.
The courts below seem to have treated both cases as though they stood on the same basis, at least to the extent of taking the position that differences that did exist were not sufficient to require the application of different legal principles or to lead to different conclusions. To this court the factual settings are such as to require separate consideration.
The case relating to the Commercial Savings Bank Trust Company will be considered first.
The questions presented therein are twofold: Is the express company entitled to a preference (1) with reference to receipts from sales from August 1, 1931, to August 13, 1931, inclusive, and (2) with reference to such receipts on August 14 and 15, 1931.
The contract between the express company and the commercial bank was entered into by correspondence. By its terms the travelers cheques were to be sold and the proceeds credited on the books of the bank to the account of the express company, and a memorandum was to be sent to the latter by the bank showing each day's business so that the express company would have a record of the sales included in the total deposited. Remittance was to be made on the last day of each month by Chicago or New York draft.
The agreement was carried out substantially as made up to and including August 13, 1931, and the amounts collected were entered on the books of the bank in the account headed "Travelers' Check Liability Account," the bank debiting itself and giving credit as agreed upon.
At the time the commercial bank went into liquidation, there was on deposit in the account the sum of $14,796.62, plus commissions, all derived from sales from August 1, 1931, to August 15, 1931, inclusive. No attempt was ever made to remit this amount nor any part of it. Of this amount $4631.50 (plus commissions) was received from sales of cheques on August 14 and 15, 1931. The receipts of these two days require separate consideration due to the fact that there was correspondence between the parties which changed the original agreement from and after August 13, 1931.
Consideration will first be given to receipts from sales from August 1, 1931, to August 13, 1931, inclusive, the total amount of which was $10,165.12.
In selling the cheques and receiving the purchase price therefor the commercial bank was the agent but on depositing the money under the agreement the relation of principal and agent was changed into that of depositor and depositee. The express company, however, claims that the deposit was special and its claim should be preferred.
There is no question but that under this contract, standing alone, the money placed in the account would be held as a general deposit.
In the Restatement of the Law of Trusts, Vol. 1, page 46, Section 12, the rule is stated as follows: "If money is deposited in a bank for a special purpose, the bank is a trustee or bailee of the money if, but only if, it is the understanding of the parties that the money deposited is not to be used by the bank for its own purposes." This language has been approved by this court in Fulton, Supt. of Banks, v. Escanaba Paper Co., 129 Ohio St. 90, 193 N.E. 758, and Squire, Supt. of Banks, v. Oxenreiter, 130 Ohio St. 475, 200 N.E. 503.
There is, however, another vital consideration. After such arrangement for the sale of cheques had been made, the express company delivered to the bank various amounts of cheques from time to time and upon receiving each allotment the bank signed a so-called trust receipt which contained a provision that the proceeds should at all times remain the property of the express company. Photostatic copies of the receipts are a part of the record and they are shown to be uniform printed forms.
The next inquiry is whether this course of conduct gave rise to an understanding of the parties which forbade the use of the proceeds in the business of the bank. The express company had no knowledge of the method by which the bank kept account of the proceeds other than that disclosed by the correspondence, but, in fact, there was no segregation and the money was used in the banking business. Two views may be taken depending on the approach to the question. One is that the alleged trust receipt and correspondence, though wholly separate, must be construed together, and the deposits deemed demarcated by the stipulation in the trust receipt. Under this construction it is claimed the bank would be required by the understanding of the parties to treat the money deposited as belonging to the express company and not commingle it with the funds of the bank. If this is the correct interpretation of the contractual relation of the parties the deposit is special. The other view is that the stipulation in the trust receipt gave character to the proceeds only so long as the bank held the money as agent but that in authorizing the deposit of the money without limitation or restriction as to use in the contract or agreement of deposit, the express company consented that agency should end with the deposit. Color is lent to this latter viewpoint by the fact that the correspondence created the agency and at the same time provided for its termination by the process of depositation. It could not be claimed that even under the terms of the receipt the money continued to be the property of the express company after the bank by consent of the former ceased to hold it as agent. The better view seems to be that a uniform printed receipt should not prevail to change the original agreement under the circumstances. It is hardly in keeping with dictates of reason to hold that an agreement for a general deposit of funds can be altered by a printed receipt which refers to funds as being held in agency but contains no language referable to the nature of the deposit, otherwise agreed to, nor to the segregation of the money deposited. In the correspondence the express company predicted a large increase in their "business, which should prove mutually profitable" with assurances of an annual total of at least $100,000 yet made no suggestion that the proceeds should not be commingled with the bank funds. This fact, of itself, affords a strong implication that the extent of the bank's general business would be broadened by an increase of deposits. The conclusion must be that the deposit was general and not special.
The express company, in its letter dated August 13, 1931, two days before the bank closed, referred to the deposits as trust funds. Whatever effect this reference had on subsequent receipts from sales, it could not serve to change the relationship under which moneys on deposit were held. As to them the relationship of debtor and creditor continued to subsist.
The express company relies upon American Express Co. v. Hansen, 176 Wn. 187, 28 P.2d 788. An examination of that case shows that there was no agreement that the bank should give credit on its books for the proceeds of sale, and such agreement as there was appears to have been incorporated in the trust receipt which differs in form from that involved here in that it provided that the bank should hold in trust the proceeds of sale.
In Smith, Liquidator, v. American Express Co., 113 Fla. 396, 152 So. 171, the facts are similar to those involved under the original agreement in the commercial bank case. The trust receipt was worded similarly and the correspondence provided for deposits. It is true that the express company in a letter to the bank spoke of "the use of the money" by the bank; otherwise the two cases seem to be similar as to the facts. It was held that there was no preference.
In legal effect the factual variation between that case and the phase of the commercial bank case under discussion constitutes a distinction without a difference. The original agreement shown by the correspondence in the latter contemplated use of the money by the bank; to have expressly agreed to such could not have increased the obligations of the contract.
There is another phase to this inquiry and that is as to the effect of a demand that the receipts on deposit be immediately forwarded to the express company and the failure to comply on the part of the commercial bank. That such noncompliance does not give rise to a preference where the deposit is general has been settled by this court. Squire, Supt. of Banks, v. Tobin, Exr., 130 Ohio St. 439, 441.
As a matter of law the express company is not entitled to a preference as against the commercial bank as to funds received by the bank under the original contract.
The case involving the Ohio bank and the receipts from sale of checks by the commercial bank on August 14 and 15, 1931, rest on a different footing. In Smith v. American Express Co., supra, the Supreme Court of Florida referred to one of its earlier reported cases, American Express Co. v. Cochrane, Liquidator, 103 Fla. 426, 137 So. 696. In the latter case the facts were similar in nature to the former case in that the contract was made by correspondence followed by the signing of trust receipts providing that proceeds should at all times remain the property of the express company; but dissimilar in that the correspondence did not refer to a deposit of the money nor to the opening of an account. A preference was allowed. A careful analysis will disclose a similar distinction between the money received by the commercial bank under the original agreement on the one hand and the money received by each bank under the new agreements arising out of correspondence beginning with the two letters of the express company (one to each bank), dated August 13, 1931, on the other.
It is true that in the Ohio bank case an arrangement for deposits of funds was made between the bank and the express company but as to these funds a check for $8,140.10, which covered all sales of cheques previous to August 14, 1931, was paid through clearing house before the Ohio bank went into liquidation.
A cashier's check for the amount of sales made on August 14, 1931, was sent to the express company, but was not paid because the bank in the meantime had gone into liquidation. The amount of this check has since been paid by the Superintendent of Banks and is not now in controversy.
At the time of closure the only proceeds of travelers cheques in the hands of the Ohio bank were such as it had agreed to make remittance of daily, or in other words only the amounts received for sales on August 15, 1931, amounting in all to $1854.63 plus the bank's commissions on such sales and an additional amount of $102.50 for travelers cheques delivered in Paris, France. No remittance of the amounts collected on this date was attempted, with the exception that the bank forwarded to the express company two cashier's checks, one for $60.15 (covering one cash sale included in the amount of $1854.63) and one for $102.50, both of which were returned unpaid due to the liquidation of the bank.
In the correspondence between the express company and the commercial bank forming the new agreement (letters dated August 13, 14 and 15, 1931) the express company referred to the proceeds of sales of travelers cheques being held as trust funds, expressed desire to terminate the existing relation, requested a remittance by draft covering all accumulated sales up to and including August 14 and advised that it would let the bank know its desires as to remitting for future sales of cheques. The commercial bank replied by assenting to the proposal.
There was similar correspondence between the express company and the Ohio bank (see letters of same dates) in which a new agreement was entered into of substantially the same import except that it was agreed that remittances should be made daily.
Under the now agreement in the commercial bank case the money was held by the bank as agent for remittance according to future direction; under the new agreement in the Ohio bank case the money was held by the bank as agent for daily remittance. In each case the new agreement took away the authority to deposit.
The total amount collected by the commercial bank from sale of cheques on August 14 and 15, 1931, was $4361.50 (plus commissions) which was deposited in the same account with the amount taken in on such sales during the month of August previous, making a total of $14,796.62 (after deducting commissions). The record does not disclose how such sum of $4361.50 was paid to the bank but it does appear that it was received either in cash, by checks on the bank itself, or by checks on other banks. In our opinion the receipts for these two days stand upon exactly the same basis as to preference and tracing the funds as does the Ohio bank case.
With this understanding we will proceed with a discussion of the Ohio bank case as, due to the availability of specific facts, the question can be treated in a more effective way.
It is thus apparent that, whereas we have had under discussion the question whether funds deposited under agreement therefor constituted a special deposit, we shall now consider the effect of the new agreement which did not authorize a deposit.
What are the facts as to the moneys held by the Ohio bank when it went into liquidation?
As to the amount of $1854.63 (other than the amount of $60.15 referred to) it still remained in the bank's hands as agent and no remittance thereof was ever made or attempted. This amount was therefore held in a fiduciary capacity by the bank for the express company at the time the former went into liquidation. There can be no question but that the express company is entitled to preference for this unremitted amount in so far as the fund can be traced.
As to the amounts of $60.15 and $102.50, for which cashier's checks were forwarded, an interesting question is presented.
There are numerous authorities upon the subject of preferences growing out of moneys received by banks in making collections. While the present inquiry involves proceeds of sales by the bank as agent the question here is so closely akin to the one considered in the collection cases that the decisions in those cases are pertinent in the solution of the problem at hand.
There is much confusion among the authorities as to the relationship existing between the bank and the claimant where a bank acts as agent in making a collection and then forwards the proceeds by cashier's check or bank exchange. Upon this question there are two schools of juristic thinking. One fathers the doctrine that the agency is terminated by the mere fact of remittance; the other school asserts that in making the remittance the bank continues to act as agent.
Upon this question many authorities are collected in 73 A.L.R., 71; 90 A. L. R., 6; and 95 A. L. R., 682.
There is some question as to which doctrine is supported by the weight of authority.
This court however is not compelled to determine this question or apply either doctrine to the solution of the problem at hand for reasons which presently will be made to appear.
Even in those jurisdictions which adhere to the doctrine that the use of bank exchange to forward the proceeds collected by the bank, as agent, changes the relation to debtor and creditor, it is held that there is an exception to the rule which may be stated thus: Where there are tokens of an intention that the fiduciary relation shall continue even after remittance, then the bank holds the funds in trust until remittance is complete; in that event if the bank goes into liquidation before remittance is complete a preference arises. Jennings, Recr., v. United States Fidelity Guaranty Co., 294 U.S. 216, 55 S.Ct., 394, 79 L.Ed., 869.
We shall therefore inquire what are the circumstances and whether there are tokens of such an intention.
The new agreement entered into by which the deposit of the proceeds was terminated and daily remittance substituted is an important factor to be considered. The making of such agreement coupled with the stipulation in the receipt that the proceeds should at all times remain the property of the express company are, taken together, manifestations of an intention that the relation of debtor and creditor should not arise through remittance.
It may be said, however, that the bank was chartered as a trust company and that if the funds were held in trust the trust company was empowered under Section 710-165, General Code, to make a general deposit thereof in the commercial or other department pending distribution under the rule laid down in McDonald, Admr., v. Fulton, Supt. of Banks, 125 Ohio St. 507, 182 N.E. 504, 83 A. L. R., 1107.
This rule applies only to funds arising from a trust, which can be administered only by a bank which has a trust charter. The funds held by the bank as agent in the instant cases were received under an agreement which a bank, not having a trust charter, could make, because any bank may act as agent in selling travelers cheques whether it has a trust charter or not. To such funds Section 710-165, General Code, has no application.
For the reasons given the bank held all the proceeds as agent including the part of which remittance had been attempted by cashier's cheeks.
There still remains the application of the doctrine of tracing the trust fund. Even though the bank hold the proceeds of the sales in trust for the express company by reason of the agency a preference does not arise unless the funds can be followed.
In determining the question it is necessary to recite the facts more fully. Of the $1863.88 received from the sale of cheques August 15, 1931, for which credit was given on the books of the bank, $557.13 was taken in in cash, of which $60.15 represented one cash sale (after deducting commissions) for which a cashier's check was forwarded but returned unpaid as heretofore stated due to liquidation of the bank. $1206 was received through checks drawn and charged against accounts of the bank and $100.75 was received in checks drawn on other banks which went through clearing house and were paid. From the $1863.88 a commission of $9.25 was deducted leaving a balance of $1854.63. In addition there is the item of $102.50 for travelers cheques delivered in Paris, France, for which a cashier's check was sent to the express company as stated but was returned unpaid because the bank closed. The drawers at all times had sufficient funds on deposit to cover and pay the checks.
On this date and all times up to and including the time the bank closed its doors, there was cash in bank far in excess of the total amount of the sales.
It is not necessary to be able to identify the particular money deposited nor to show that the amount purported to have been received was converted into specific cash, when such amount is commingled with general funds of the bank. Fulton, Supt. of Banks, v. Escanaba Paper Co., 129 Ohio St. 90, 193 N.E. 758. This is the rule prevailing in most jurisdictions. 82 A. L. R., 125, annotation. Such commingling does not of itself, extinguish the right of the owner to follow and reclaim the fund or an equivalent amount. By reason and weight of authority when a trustee or agent commingles trust funds or funds of the cestui or principal with his own, the presumption is that when he pays out money from the commingled funds, he pays from his own and not from that which he holds in behalf of the owner in law or equity. Many authorities are collected in 82 A. L. R., 141, annotation.
Applying these principles to the case under discussion there is no difficulty in tracing the fund so far as the concern is with proceeds of cash sales or travelers cheques. Cash proceeds are definitely traced into cash on hand at the time the bank closed.
As to the amount collected from the sales through checks drawn upon the bank itself, a question of greater difficulty is presented. Upon this subject there is a contrariety of opinion. The "majority view" is that there is such an augmentation of the assets of the bank that the fund can be followed, and "the minority view," that there is merely a shifting of credits without augmentation of assets. The authorities on the subject are collected in an exhaustive monograph in 82 A. L. R., 97.
This court adheres to the "majority rule" but is not impelled to that course wholly by the weight of precedent. That view seems to be sustained by reason and logic. When the buyer of travelers cheques presents to the bank his own check in payment, the cashier may hand to him currency in the amount of his check and then receive it back in return for the travelers cheques; or he may take the purchaser's check and in return therefor deliver the travelers cheques. In either event the purchaser's check will be charged out of the latter's account and the proceeds of sale held for the express company. It is no matter which way the transaction is handled; in either event the total amount of the deposits of the bank is decreased by so much cash and the amount held as agent for the express company is increased.
To leave the proceeds of sales commingled with other deposits by accepting the check of purchaser in payment of travelers cheques therefore would seem to have the same effect as for the bank to cash such purchaser's check and receive the cash back and again commingle it with bank funds. An attempted differentiation would seem to result in a distinction without a difference. At any rate the same end is attained by either process and it is of little moment whether one reaches his destination by going around the road or across lots. The proceeds, representing the purchaser's check, is in the bank, whichever way the matter is handled. The law looks to the substance of a transaction and not the shadow. The augmentation takes place by the reduction of the amount of the deposits on hand and the increase of the amount the bank holds as agent.
In the case of Fulton, Supt. of Banks, v. Escanaba Paper Co., supra, there is an excellent and clear statement of the same theory in a different but effective way. This court is content with the exposition of the doctrine in that case and is measurably committed in the third paragraph of the syllabus.
It is true that in Fulton, Supt. of Banks, v. Gardiner, 127 Ohio St. 77, 186 N.E. 724, some reference is made to the necessity that a trust fund should have a corpus or res that could be followed but this court in no sense committed itself to the "minority view." A careful reading of the per curiam opinion discloses that the decision was made on authority of McDonald, Admr., v. Fulton, Supt. of Banks, supra.
In Fulton, Supt. of Banks, v. B. R. Baker-Toledo Co., 128 Ohio St. 226, 190 N.E. 459, 93 A. L. R., 933, there is a dictum pointing in the direction of the "minority rule" but the pronouncement in Escanaba Paper Co. case, supra, is of later date.
As to proceeds from sale of travelers cheques, which were paid for by checks on other banks, there was an augmentation of assets through satisfaction of the checks by the banks on which they were drawn. How this satisfaction was consummated does not appear from the record.
The conclusion is inevitable that the Ohio bank held all proceeds of collections made on the last day the bank was open as agent for the express company, the owner thereof, and that the trust fund can be followed into the money on hand when it closed, which was ample for that purpose at all times.
There may be other claims entitled to preference on a par with the one involved here; if so, the preferred claim in the instant case and all other preferred claims which stand on the same basis must share pro rata, if funds are insufficient to pay all such preferred claims in full. The preferred claims in any event can only be paid to the extent of the minimum amount of cash in bank after the commingling of trust moneys with general funds of the bank.
In allowing preferences no interest will be computed as it has been held that a preferred creditor is not entitled to have interest paid on the principal amount as against general creditors. Falton, Supt. of Banks, v. B. R. Baker-Toledo Co., supra.
The court finds in the commercial bank case that the preference should be denied as to proceeds of travelers cheques received from August I to 13, 1931, inclusive, as a matter of law, but that as to proceeds received August 14 and 15, 1931, the finding that there was a preference was warranted; and the court finds as to the Ohio bank case preference was properly allowed.
Judgment reversed as to proceeds received August 1 to 13, 1931, inclusive, and final judgment for plaintiff in error, otherwise judgment affirmed, in cause No. 25614.Judgment affirmed in cause No. 25615.
WEYGANDT, C.J., STEPHENSON, MATTHIAS, DAY and ZIMMERMAN, JJ., concur.
JONES, J., affirms in both cases.