Richardson v. Continental Nat. Bank of Memphis

After stating the facts, the opinion of the court was delivered by PARDEE, Circuit Judge. The questions presented on this- appeal are identical with those presented in the case of Richardson v. Banking Co. (j'ust decided) 94 Fed. 442. On the facts as recited there is still less reason in claiming that under the contract between the parties the American Rational Bank purchased, the items forwarded, and that the relation of debtor and creditor ensued as soon as the items were credited on [453] the books of the American National Bank. The correspondence between the parties was plainly and directly about collections only, and the course of business between the parties, so far as it was proved, prior to the failure of the bank, shows the full understanding of the parties that the business to be transacted was that of collection merely. All the items going to make up the sum of §8,249.28 are fully proven to have been collected subsequently to the failure of the American National Bank, and there is no dispute that the respective amounts thereof came to the hands of the receiver, and were sufficiently identified to show on what claims and for whose account they were collected. The objections as to the allowance of interest and the form of the judgment are allowed, for the reasons given in Richardson v. Banking Co., just decided. There has been much unnecessary trouble to the judges of this court, and probably to the judges in the circuit court, from the neglect of the parties to follow the usual rule in such cases, and have the accounting done contradictorily before a master. The decree of the circuit court should be reversed, and the cause remanded, with instructions to enter a decree as follows: It is ordered, adjudged, and decreed that the complainant, the Continental National Bank of Memphis, do have and recover from the defendant, Frank i. Richardson, receiver of the American National Bank, the sum of $8,249.28, which said receiver is ordered to pay, out of the funds which have come to Ms hands as receiver, within 30 days from the signing of this decree, and by priority over all unsecured creditors of the American National Bank, or that he do within said delay certify the same to the comptroller of the currency, with a copy of this decree; and it. is further ordered and decreed that for the balance of complainant's claim, to wit, the sum of $5,692.61, the said Continental National Bank of Memphis be, and is hereby, recognized as a general creditor, entitled to participate pro rata with the depositors and other general creditors of said American National Bank of New Orleans in the distribution of its assets; and it is ordered and decreed that the said defendant receiver pay to said Continental National Bank of Memphis, Tenn., such pro rata thereon as has been or may be paid to other unsecured creditors of said American National Bank, or do certify the same to the comptroller, to govern his action in the premises. And it is so ordered.