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-6D 8- - COMMONWEALTH- -BLDG.- -&-- LOAN ASS'N ._ - [1_87 - MCHUGH. COMMONWEALTH BUILDING & LOAN ASSOCIATION v. MCHUGH. 4-3051 Opinion delivered June 19, 1933 BILLS AND NOTESPAYMENT OF CIIECK.—Where a payee sent a check to the drawee for payment, and the drawee promptly charged
ARK.] ,CON MON-WEAL/T.11 BLDG. & LOAN ASS 'IN v. 629 MdfluGH. the check . to the 'drawer's account, this eStablished the relation of creditor and debtor between the payee and drawee, and- the drawer was not liable on the. drawee's failure to cash a draft drawn on it by the payee. Appeal from - Mississippi -Chancery Court, OsCeola Dis.trict ; J. M. Fittrell, Chancellor ; affirmed. Johii for appellant. Gladish& Yowity, for -appellee... . ' HUMPHREYS, J. , This suit was brought by appellant-'against appellee in the chancery 'court of Mississippi 'County, -Osceola. District,• to cancel two certificates Of investment: stock issued and delivered to him by appellant, one for $500 and tbe'other . for $300, with alternate prayers that aPPellee be required to pay $800 for them or for their return. If *was alleged in the complaint that ap-Pellee had not paid for the stock. 'Appellee filed an answer admitting the delivery of the two certificate§ of stock to him, but denying that he had failed to pay for same. The 'Cause was stbinitted to the chancery court upon the pleadings and lestimony;from which the court found that appellee had paid for the stock, and, based upon that finding, rendered a judgment dismissing appellant's complaint, froin which is this appeal. - - The facts respOnsive to the issue of payment are undisputed and, in substance, are as follows : On December 12, 1031, appellee Made written applications through appellant's agent, W. W. Prewitt, to aPpellant for the paid up certificates of investment stock -and drew bis cheCk in favor of appellant on the Bank Of Osceola, where the agent and appellee resided, fOr $800 and delivered same to the agent. The agent bad no au,- thority to indorse or- cash the check, so he attached the check to the applications 'and mailed them on the same day tO appellant in Little Rock. Appellant received the Check on . the 14th and-immediately _issued the stock certificates to appellee and mailed them_ to its agent,- who.. delivered them to appellee Oli the 15th. On the same day, it deposited the check in the Bankers' Trust Coinpany at Little Rock for collection and took- credit for same on
- .630- -CommoN WEALTH_ RLDG _86..LOA N ASS 'NI V. [IV MOTIUgH. its account. The Bankers' Trust Company- forwarded .the check directly to the Bank . of Osceola, on which it was drawn, for. payMent, there being no . other bank in the city of Osceola. The Osceola bank reCeived the check on December 15; stamped same-`.` Paid" on that date, and charged same to- the account, of appellee.' The- Bank of Osceola remained open and- transacted all kinds . of .business until December:181 -On the. 17th it forwarded its draft to the Bankers' TruSt Company for the amOunt of $800 to. Over the. item . it had charged. appellee's account on the 15th.- . The. Bankers.' Trust : Company received the draft for $800 7 drawn . , on the,.:Union. Trust Company, where the Bank of Osceola had- sufficient .funds on deposit to pay same, but it : refused to cash the draft because it was reported on the morning of the 18th that the Bank of Osceola had closed its doors. Appellee had on deposit - in the Bank of Osceola more than enough to. pay the check it drew on said, bank to appellant in payment of the stock certificates, and, when the-check was charged to his account- and stamped paid,:,it still; left a balance in the bank in his ' favor. . After . the _Bank Commissioner toOk charge of the Bank of. Osceola, the Bankers' Trust Company returned the draft to . him, and he returned the check to the Bankers' Trust Company.and reversed the entry . of.paymentand. charged the check .back-to the account of a.ppeliee. The Bankers' Trust Company reversed.its. entries, on its books and returned the : check to appellant. -, _Under the Jaw, appellant became _a creditor of _the Bank -of Osceola and the Bank of Osceola, a debtor to it, because the- Bankers' .Trust Company. did not send the check to the Bank of Osceola for collection but for payment out , of -the , . account of appellee.- ,The Check. was _promptly paid, and the.relationship of creditor arid debtor was:established between them. It was, a closed transaction between the Bank -of Osceola. and appellee. He passed out of the picture, his only duty being to have money in the Bank of Osceola to pay the check if it arrived within a reasonable time. The principle thus announced and applicable to the facts in the instant case
may be fonnd in the . cases of Taylor v. D&mott Groóery Commi,ssion 'Company, 185 Ark7, 45 S:' W. (2d) 23; and Bank of Conway v. Hiegel,.ante p. 313. No error appearing; *the deere'e is affirmed.
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