PECOS COUNTY STATE BANK v. LYNCH

PECOS COUNTY STATE BANK v. LYNCH. No. 6886 Circuit Court of Appeals, Fifth Circuit. Feb. 26, 1934. James Cornel1, of San Angelo, Tex., for appellant. Thornton Hardie, of El Paso, Tex, for appellee. Before BRYAN, FOSTER, and SIBLEY, Circuit Judges, [MAJORITY — FOSTER, Circuit Judge.] FOSTER, Circuit Judge. This is an appeal from a judgment allow-a claim 0f $2,773.43 against the receiver o£ a na£ional bank as an ordinary debt to be pajd j¡n £be course of the liquidation, but de-uying a preference. The facts axe not in dis-p^te. g0 far as material, they are these : The Pecos County State Bank and First National Bank o£ Fort Stockton were located at Fort Stockton, Texas. The First National Bank closed its doors On October and on October 5, 1931, and on October 13, 1931.was inted reeeiver. prior theret on Odober £ 1931 in tbe clearance of ebeeks drawn fey depositors o£ tLe gaid banks tbere -was a balance in favor of the state bank o£ $527.69. In payment of this the national bank gave a draft on the San Angelo National Bank at San Angelo, Tex. On October 3, 1931, there was a similar balanee of $2,247.74, for which the national bank gave a draft on the Republic Bank & Trust Company of Dallas, Tex. Neither draft was paid because before it was presented the First National Bank had closed its doors. There were sufficient funds on deposit with the respective banks on which they were drawn to pay the drafts. Subsequently, the receiver realized more from these deposits than the amounts of the drafts. It is not shown what amount of cash the First National had in its possession when it became insolvent or how much cash the receiver obtained when he took charge. The state bank had the right to demand cash in its settlements, but, as it took drafts payment, the relation of simple debtor and creditor was established. No trust was created, and the drafts were not assignments of the funds in the banks upon which drawn creating a trust or establishing a lien on those funds. The judgment of the District Court denying preferential payment was right. Spurway v. Frick Co. (C. C. A.) 63 F.(2d) 875; Central Texas Exch. Nat. Bank of Waco v. First National Bank of Waco (Tex. Civ. App.) 243 S. W. 998. Affirmed.