Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; George E. Q. Johnson, Judge.
Before EVANS, SPARKS, and PAGE, Circuit Judges.
Appellee brought this action against appellant and the bank for which he was receiver, to establish a preferred claim in the amount of $8,500. The amount of the claim is not controverted. The court, under Equity Rule 70 1/2 (28 USCA § 723), found the facts specially, and in substance they are as follows: Jackson Park National Bank of Chicago, which is hereinafter referred to as the Bank, was a national bank doing business in Chicago on June 22, 1932. Prior to that date, appellee had opened a savings account with the Bank, and on June 22, 1932, there were credits in her favor in that account in the total sum of $9,642.73. On the morning of that day she went to the Bank and on her own initiative without speaking to anyone she made out a savings withdrawal receipt for her entire deposit, and presented it, with her savings pass book, to the manager of the Savings Department, asking her with which down town bank the Bank did business. In response, the manager said, "The Continental." The manager thereupon went to the ledger, pulled the ledger sheet, and made an entry in the pass book, asking appellee if she wanted currency or a cashier's check. In response she stated that she was going to take the money to their down town bank to get a draft or whatever was necessary in order to take the money to Europe. She was then advised that the Bank could perform that service for her, and referred to another employee of the Bank for that purpose. In consultation with him, appellee selected a bank in Copenhagen as her foreign depository, and he informed her that the Bank would give its draft on the Central Hanover Bank and Trust Company of New York, hereinafter referred to as Central Hanover. Appellee thereupon left $8,500 at the Bank, and took with her in currency $1,142.73, which was the difference between her deposit account and the draft. The Bank as agent of appellee then mailed the draft to the selected bank of Copenhagen, together with its letter and identifying signatures, and delivered to appellee a copy of that letter and the Bank's receipt for the draft. At that time the Bank did not have sufficient funds with Central Hanover to meet the draft, and it therefore immediately wired $5,000 to Central Hanover to meet the deficiency. The next day the Bank did not open. The receiver took charge of the Bank's credit in Central Hanover amounting to $4,377.58, and the draft was dishonored and returned.
Upon those facts the court based the following conclusions of law:
1. "That the relationship of creditor and depositor * * * was terminated at the time the withdrawal receipt and pass-book were presented, the 'ledger-sheet pulled' and entry made, and she stood in the same relationship to the bank as if she had brought into the bank $8,500 and given it to the bank officer for transmittal.
2. "That the account of plaintiff was not charged with the amount of the draft.
3. "That the assets of the bank were augmented by the sum of $8,500.
4. "That the title to said sum was not in the bank.
5. "That the defendant was merely the agent of the plaintiff for the transmittal of the fund.
6. "That the plaintiff is entitled to a preference.
7. "That at the time of the closing of the Jackson Park * * * Bank * * * it had on hand more than the amount of the plaintiff's claim in cash and that the defendant, J.T. Connolly, as Receiver, came into possession thereof."
Judgment was thereupon rendered for appellee in the sum of $8,500 as a claim preferred over general creditors. From that judgment this appeal is prosecuted.
It will be noted that what purport to be conclusions of law numbered 2 and 7 are clearly findings of fact, and there is nothing in the findings of fact to support those conclusions. It is quite true that the evidence, if we were permitted to consider it for that purpose, might support those conclusions, but under Equity Rule 70 1/2 we are limited by the findings of fact, if they are substantially supported by the evidence, and they are thus supported in this case, with one exception.If the findings were not sufficiently broad, each party had a right to call that fact to the attention of the court, but that was not done here. On the contrary, neither party objected to the findings, hence we are concerned only with the ...