Bank of Eclectic v. Sturdivant Bank

GARDNER, J. [1] We are in full accord with the conclusion of the court below that at the time of the transfer of all the assets of the Elmore County Bank to the Bank of Eclectic the former was largely indebted to the latter, which debt formed a controlling consideration for such transfer. If the Sturdivant Bank, therefore, was a creditor of the Elmore County Bank at the time, the equity of its bill to have such a transaction declared a general assignment for the benefit of all creditors of said Elmore County Bank cannot be questioned. Section 4295, Code of 1907; Elliott v. Kyle, 176 Ala. 376, 58 South. 309. [2] Counsel for appellee insists that the acceptance of the draft here in question came within the authority and duties of the cashier of the bank, and that the signature of the cashier is the signature of the bank so far as its effect is concerned (Montgomery B. & T. Co. v. Walker, 181 Ala. 368, 61 South. 951; First Nat. Bk. of Birmingham v. First Nat. Bk. of Newport, 116 Ala. 520, 22 South. 976; Moore v. Pope, 97 Ala. 462, 11 South. 840; McGhee v. Importers’ & Traders’ Nat. Bk., 93 Ala. 192, 9 South. 734; Morse on Banks, vol. 1, § 156; 7 Corp. Jur. pp. 549, 552, 553; 3 R. C. L. § 74); while counsel for appellant insists that the letter of acceptance, signed by the cashier, does not appear'to be binding upon the bank. This question as to the inherent authority of the cashier we may pass as unnecessary to decide, and without indicating any opinion thereon. The act which the cashier assumed to perform is certainly one intrinsically proper to be committed to his charge. The arrangement for the line of credit to be extended to Gilliland was made by the president of the bank, followed by the letter of credit signed by the cashier, as shown in the statement of the case, and was acted upon in good faith by the Sturdivant Bank in cashing the drafts drawn in accordance with said letter. The testimony offered by complainant—respondents offering no proof—-was without dispute, and we think there can be no question that the proof here offered clearly made out a prima facie case of liability on the part of the Elmore County Bank to the *461 Sturdivant Bank for the amount of said draft. Morse on Banks, vol. 1, § 165b. See, also, § 156, same authority; Farmers’ & Mechanics’ Bk. v. Troy City Bk., 1 Doug. (Mich.) 457. [3] The' evidence shows that one of the members of the Sturdivant-Bank, in charge of the correspondence, became confused as to whether or not remittance had been made for this particular draft, and at one time stated to the president of the Elmore County Bank that he thought all drafts had been paid, which statement he subsequently corrected. However, there is no evidence tending to show that the Bank of Eclectic was informed of any such statement at the time or prior to the transfer. There is therefore no evidence whatever going to show that said bank was misled in the least by such statement to Holloway, or that the bank acted upon it in any manner. The essential elements of estoppel are wholly lacking, and this insistence of counsel for appellant is therefore without merit. What we have said above discloses our opinion that the demurrer to the bill was properly overruled, and that the final decree was justified by the proof and will be accordingly affirmed. Affirmed. ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.