In tabloid, the essential and controlling facts as stipulated in the agreed statement of facts are as follows:
The Spicer Manufacturing Company of Toledo, Ohio, drew its check for $1710.55 upon its commercial account in The Ohio Savings Bank Trust Company to the order of some one in England, who, upon its receipt, started its return to Toledo for collection and payment. It was transmitted through various banking institutions to the Federal Reserve Bank of Cleveland, from which The Toledo Trust Company then bought it outright, paying therefor to the Federal Reserve Bank the face value thereof, to wit, $1710.55. Thereby and thereupon The Toledo Trust Company became the absolute owner and holder thereof. On August 15, 1931, the day of its purchase and receipt, The Toledo Trust Company presented it to The Ohio Savings Bank Trust Company for payment. The Ohio Savings Bank Trust Company received, accepted and retained the check, charging the amount thereof to The Spicer Manufacturing Company account, which account was in excess of the amount of the check. The amount of the check having been so charged to the commercial checking account of The Spicer Manufacturing Company was at once credited by The Ohio Savings Bank Trust Company to an account maintained by it, known as the "Balance Check Account." The Ohio Savings Bank Trust Company then drew its check upon this latter account to the order of The Toledo Trust Company for $1710.55. The Toledo *Page 325 Trust Company, upon presentment by it of the Spicer Manufacturing Company check, received and accepted the check of The Ohio Savings Bank Trust Company drawn on its "Balance Check Account," "for the purpose of paying said Spicer Manufacturing Company check." The next day, August 16, was Sunday, and on Monday, August 17, before payment of The Ohio Savings Bank Trust Company check, the defendant, Ira J. Fulton, the Superintendent of Banks, took possession of its assets and property for the purpose of liquidation.
If the charging of the Spicer check to the Spicer account is all-sufficient to make it a preferential claim, and The Ohio Savings Bank Trust Company check is merely an order evidencing this fact, then regardless of how long prior to the closing of The Ohio Savings Bank Trust Company the payee had received the Ohio Savings Bank Trust Company check, might he not retain it for an indefinite time before presentment for payment without affecting his right to have the amount thereof declared a preference? Certainly the statute in question does not contemplate or justify any such conclusion.
Again we may ask whether, if the original payee of the Spicer check, instead of the subsequent purchaser of it, The Toledo Trust Company, had personally presented it to The Ohio Savings Bank Trust Company for payment, and upon presentment thereof for that purpose had accepted, in lieu of cash, which he was entitled to demand, a check of The Ohio Savings Bank Trust Company, which was not paid before the taking over of the property and assets of the Ohio bank for liquidation, he would be entitled to a preference? Or, if the Toledo Trust Company had endorsed or sold the check to Judge Overmyer, would he have been entitled, upon its presentment for payment, to have the amount thereof declared a preference? It seems to me *Page 326 not, and I can discover no difference in right in this respect between the original payee and The Toledo Trust Company. To now call The Ohio Savings Bank Trust Company check a mere conditional order or receipt after the transaction is completed for the purpose of accomplishing a desired object, or an appeal to an alleged custom among banks, to destroy its legal effect, can not make it anything more or less than what in fact it is.
On the facts in evidence I am unable to see how the Toledo Trust Company is entitled to a preference for the amount in question over claims of general creditors, and therefore dissent from the conclusion reached by the majority of the court.