Hughes v. Garrett

Hart, J. (after stating the facts). The judgment of the circuit court was wrong. At the time the bank failed it had made no appropriation whatever of the amount of the general deposit of Hughes towards the payment of any of Ms notes dne the bank. When the receiver was appointed, Hughes directed-him to apply the amount due him on general deposit by the bank to the payment of the note sued on first, and the balance to the payment of other indebtedness. The receiver had no right to refuse to make the appropriation as directed. This court has held that, the relation between a bank and a general depositor being that of debtor and creditor, if the bank becomes insolvent, a depositor who is also indebted to the bank may set off the amount of his deposit in an action by the receiver or assignee to recover on the indebtedness due the bank. Funk v. Young, 138 Ark. 38, and Steelman v. Atchley, 98 Ark. 294, As we have already seen, the record in this case shows that the bank did not appropriate the deposit of Hughes to the payment of any indebtedness due the bank until after Hughes had directed it to be applied to the payment of the note sued on. It is true that the note sued on was signed by Hughes and Bundle as his sureties. It is well settled in this State that a debt due from a sole plaintiff to one of several defendants may be pleaded under our statute as a set-off by the defendant to whom such debt is due. Burton v. Blytheville Realty Co., 108 Ark. 411, and Rush v. Citizens’ National Bank, 114 Ark. 170, and cases cited. It follows from the facts stated that Hughes had a right to set-off against the note sued on his individual indebtedness to the bank, and the court erred in directing the jury to find a verdict for appellee. For that error the judgment will be reversed, and the cause will be remanded for a new trial.