Dupree v. . Harrell

BbogdeN, J. Tbe only question of law is whether tbe facts create a preference. Tbe plaintiff insists that tbe facts disclose that be bad on checking account $3,156.75, and that be was anxious to purchase $2,000 worth of Liberty Bonds with tbis money. Thereupon be went to tbe bank and drew a check on bis account, payable to tbe bank, for tbe sum of $2,000, and presented tbe check to an official of tbe bank, who agreed to use tbe proceeds of same, to wit, tbe sum of $2,000, for tbe sole and exclusive purpose of purchasing Liberty Bonds. Therefore, tbe plaintiff says that in legal effect be presented bis check- at tbe window, received $2,000 in cash, and redeposited tbe money in tbe bank as a special deposit for the sole purpose of buying Liberty Bonds, and hence be is entitled to a preference. Tbe identical contention was made in Blakey v. Brinson, 286 U. S., 254, 76 L. Ed., 1089, and it was intimated that such position found support in tbe authorities and “might afford a basis for tbe inference that respondent no longer content with tbe role of creditor, bad sought to establish a trust fund.” Upon tbe other band tbe defendant insists that tbe plaintiff bad $3,156.75 in tbe bank and was desirous of using a portion of said fund for tbe purpose of purchasing Liberty Bonds; that while be drew a check p>ayable to tbe bank and presented it to another official of tbe bank that tbis transaction was in effect a mere shifting of credit in tbe bank affecting tbe identical sum of money then to tbe credit of tbe plaintiff, and that no act was done which separated tbe $2,000 from tbe mass of tbe deposit, and that in truth tbe giving of tbe check, under tbe circumstances, disclosed by tbe record was merely an incident of using funds in tbe bank to buy Liberty Bonds, and that no new money whatever went into the bank to swell its assets. *597 Altbougb there is wide divergence among the textwriters and courts of last resort in interpreting the law of preference, the view taken by the defendant is in accord with the former pronouncement of the court upon the subject. Parker v. Trust Co., 202 N. C., 230, 162 S. E., 564; Williams v. Hood, 204 N. C., 140; In re Bank of Pender, 204 N. C., 143; Flack v. Hood, 204 N. C., 337; 82 A. L. R., 46, et seq. The plaintiff is entitled to judgment but not to a preference. Modified and affirmed.