Rouse v. Calvin

Mr. Justice Sears delivered the opinion of the court. The receiver Avas entitled to the fund in question. On June 26, 1896, the date of the receiver’s appointment, the fund of $422.78 was, to the extent of $412, the amount of appellants’ check, in the hands of the Illinois Trust & Savings Bank, and in course of collection for the Climax Cycle Company; and to the extent of $10.78 was a balance of the deposit account of the Climax Cycle Company in the bank. It Avas all the property of the Climax Cycle Company on June 26, 1896, and by virtue of the order of the Superior Court of that date became transferred to the receiver. Appellants were not entitled to the amount of this fund represented by their check, for the payment by them to the Climax Cycle Company is not shown to have been obtained bv fraud and can not be rescinded merely by reason of the subsequent receivership. The transaction, sending check and ordering goods, created a liability on the part of the Climax Cycle Company to appellants, and that liability still exists, but it can not be thus enforced as against this specific fund. They can not go upon this particular fund to the prejudice of other general creditors, to satisfy a claim, whether it be for money had and received or for damages for a breach of contract. Appellee was not entitled to the fund, for her check, being for a sum larger than the balance which the drawer had on deposit, did not operate to transfer such amount as was on deposit. Pabst Brewing Co. v. Reeves, 42 Ill. App. 154. Neither did it operate to transfer any amount until presentation. Pabst Brewing Co. v. Reeves, supra; Greenebaum v. Am. T. & Sav. Bank, 70 Ill. App. 407. In the former case the court said: “ The rule in this State is that the check of a depositor upon his banker transfers to the payee the title to so much of the deposit as the check calls for, provided the depositor has funds to that amount on deposit, subject to his check at the time it is presented.” It was not presented until after the order appointing the receiver had operated to transfer the balance of the Climax Cycle Company in the bank to the receiver. If, therefore, the receiver had joined in this appeal, or if the assignments of error were broad enough to permit appellants, as a general creditor, to insist upon the receiver’s rights, we would be obliged to treat the decree as erroneous. But the receiver does not appeal. And it is not assigned as error that the court erred in not decreeing that the receiver was entitled to the fund. Wé can not grant relief which is not sought, nor can we act upon errors not complained of. The only errors assigned are, in effect, that the trial court erred in not decreeing that appellants were entitled to the fund. In this there was no error. In so far as the decree finds that appellants are not entitled to the fund in question, it is affirmed.