Dillman v. Carlin

Marshall, J. These two questions are presented for decision on this appeal: (1) Are the findings to the effect that the respondent took the chock from Schmidt for value and in good faith as to the latter’s creditors, and with intent on the part of both parties to the transaction that the bank credit drawn upon should thereby be assigned to respond [17] ent, supported by the evidence? (2) Did sitcb facts constitute respondent the legal or equitable owner of the indebtedness of the bank to Schmidt? The first proposition is ruled by the familiar doctrine that findings of fact made by a trial court cannot be disturbed on appeal unless contrary to the clear preponderance of the evidence. Applying that test to the record, no error is discovered. The second proposition is ruled by Pease v. Landauer, 63 Wis. 20, and Skobis v. Ferge, 102 Wis. 122. At least since the decision in the first case cited, it has been the law of this state that if the owner of a bank credit give a check thereon, for value, to another, with intent to transfer such credit, or a part of it, to such other, the latter will thereby be constituted at least the equitable owner of such fund or sufficient thereof to satisfy the check, so that whether the bank be legally liable to the check holder or not, if by any means the parties interested are brought into a court of equity while the bank is yet the debtor and can be protected against paying its debt twice, and it stands indifferent as to who gets the money so long as it is protected, the check holder will be preferred to the drawer or any subsequent claimant, whether by assignment of the drawer or by legal process served upon the drawee. In the Skobis Case that rule was affirmed and applied. It is well understood that there is much conflict in the authorities as to the rights of a holder of a bank check or order payable out of a particular fund under such circumstances as exist in this case. It is useless to try to harmonize them or do more than to recognize the existence of the conflict. The law of this state, as indicated, is firmly established. It accords with what is stated by standard text writers to be the true doctrine. Daniel, Neg. Inst. §§ 22, 1638, 1643. A check for a part of a bank credit, intended to transfer [18] such credit, jpro'tcmto, operates that way in equity as against any subsequent claimant thereof, saving the rights of the drawee, particularly as to being obliged to pay such part of the fund twice. A check intended to transfer an entire fund operates that way at law, saving, as before, the rights of the* drawee, timely and sufficient notice being required to fix its liability to the assignee. The whole subject referred to was. so thoroughly discussed by Mr. Justice Dodge in the STcohis Case that most questions that are likely to arise in respect to the rights of the owner of a check or order for payment, out of or by a fund in the hands of the drawee, will be found there sufficiently answered. By the Court.— The judgment of the circuit court is affirmed.