Hyperlawhypertext legal database Coates v. First National Bank of Emporia 47 N.Y. Super. Ct. 322

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Coates v. First National Bank of Emporia

47 N.Y. Super. Ct. 322 15 Jones & S. 322 Court N.Y. Super. Ct. Decision date 1881-04-04 English

Contents

Majority

p. 322
KERSEY COATES, Respondent, v. THE FIRST NATIONAL BANK OF EMPORIA, et al., Appellants.

Headnote

Hquitable assignment—transactions between banks for transfer of credit, when do not constitute.—General assignment—when not void as fraud upon bankrupt act.— Contract—by what law to be construed.—Inter-State comity.
Op and prior to August 1, 1878, the bank of E., of Kansas, was a depositor with the M. bank of Missouri, and both banks were depositors with D., L. & Co., of New York; and D., L. & Co., at that time, were indebted to the M. bank in the sum of $10,000. Upon that day, the M. bank received a duly executed written request from the bank of B., as follows: “ Remit to D., L. & Co., N. Y., $5,000,” for our account credit, and charge our account;” on the same day the M. bank mailed to D., L. & Co. a duly executed paper writing, as follows: “Pay to the order of credit the bank of E., $5,000, ” also a letter, “ Please find inclosed, for the credit of the bank of E., $5,000,” and also in the same inclosure, other like writings, in behalf of other banks, the aggregate credits asked in which exceeded the amount due from D. L., & Co. to the M. bank. Thereafter the M. bank credited account of D., L. & Co., and charged account of bank of E. with $5,000, and wrote to the bank of E.: “We remit $5,000 to D., L. & Co., N. Y., to your credit;” whereupon, bank of E. credited account of M. bank, and charged account D., L. & Co., $5,000. On August 3, the M. bank made a general assignment of its property and effects to plaintiff, who duly accepted it, and on the 4th telegraphed the fact to D., L. & Co., which telegram reached them on the 5th, two hours before the above inclosure containing requests for credits. The orders or drafts were not accepted or acted upon, and the credits therein requested were not given, and D., L. & Co. subsequently paid the amount of its said indebtedness to the M. bank, into court.
Held, that the above transactions did not amount to an equitable assignment, and therefore, the credit asked for not having been given, that the bank of E. and the other defendants have "no right to any part of the fund in court.
It seems, that the effect of the above transaction is to be determined by the laws of the State of New York, as the consummation of the transaction—the increase of credit—was to be effected here.
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Meld, that a claim that the assignment was repugnant to the laws of this State, and that the power to make it, under the laws of Missouri, was suspended by the bankrupt act, cannot be sustained herein
(1) It does not appear that bankruptcy proceedings were ever instituted by or against the M. bank, and an assignment of property can be attacked, as being a fraud upon the bankrupt act, only in involuntary proceedings commenced within the period after the assignment, designated in that act, or be set up in subsequent voluntary proceedings, as a bar to the discharge of the debtor.
(2) There were no citizens of this State, or other creditors of the M. bank, who had been conducting themselves with reference to the laws of this State, in regard to the property of said bank, found, or being within the jurisdiction of the State, to whom our laws had promised anything as fruits of such conduct, and, therefore, there are no considerations of public policy to prevent our courts from, aiding plaintiff to recover the funds in question.
Before Sedgwick, Ch. J., Freedman and Trtjax, JJ.
Decided April 4, 1881.
Appeal from judgment entered upon the report of a referee.
The facts appear in the referee’s opinion, as follows :
J. S. Bosworth, Referee.—■“ On, and for some years prior to August 1, 1878, The First National of Emporia, Kansas, and Jenkins W. Morris (another name for “ Salina Bank,” Kansas), were depositors with the Mastín Bank, and each of these three banks, during; all this time, was a depositor with Donnell, Lawson & Co., bankers in the city of New York.
“ On August 3, 1878, the Mastín Bank made a general assignment of all its property and effects to Kersey Coates of Jackson county, Missouri. Coates accepted the assignment, and entered at once upon the discharge of his duties, as assignee. On August 4, Coates telegraphed to Donnell, Lawson & Co. the fact of such assignment having been made, which tele
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gram was received by the latter about 10 a. m., of August 5. There was then due from the latter to the Mastín Bank (laying out of view the validity of the claims made here by the contesting defendants) the sum of $9,786.75, as then stated by Donnell, Lawson & Co. to the plaintiff’s agent, but subsequently ascertained to be, with interest to such subsequent date, $10,028.89.
“ The plaintiff, as such assignee, in September, 1878, brought an action in this court against Donnell, Lawson & Co., to recover the sum of $9,786.75, the amount then supposed to be owing by them. Donnell, Lawson '& Co. made a motion in that action, for leave to pay the money into court, and to be discharged from liability on so doing, on allegations that each of the defendants, by transactions between it and the Mastín Bank prior in date to the assignment, claimed to have become owners of part of the amount owing by Donnell, Lawson & Co. to the Mastín Bank; and that the claims of all of them exceeded the amount of such balance. That motion was granted by an order made December 9, 1878, and thereupon Donnell, Lawson & Co. paid into court $10,023.89. By such -order the present defendants were substituted as defendants in the action, in the place and stead of Donnell, Lawson & Co. Only two of such defendants appear in this action and make any claims to said fund.
“ Those two defendants, being the First National Bank of Emporia, and Jenkins W. Morris, for answer to the amended complaint, among other things, allege ‘upon their information and belief, that on the said first, day of August, 1878, the said Mastín Bank, for value received, and under and in pursuance of an agreement with these defendants and each of them, for that purpose concluded on that day, duly assigned, transferred and set over, and delivered unto these defendants the whole of said sum of $9,786.75, then on
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deposit with said Donnell, Lawson & Co., as aforesaid; whereupon, as defendants are informed and believe, they became the lawful owners of said sum of money, and of the whole thereof, and have from thence to the present time been the sole owners thereof.’
“The Mastín Bank did not assign to these two defendants, or either of them, on August 1, 1878, the whole or any part of the amount then owing by Donnell, Lawson & Co., to the Mastín Bank, unless the transactions to be now stated, amount to such an assignment and transfer.
“ On August 1,1878, the Mastín Bank received from the First National Bank of Emporia, a written communication dated July 31, 1878, and which, exclusive of the heading of it, was in the words and figures, viz. :
“ ‘ John J. Mastín, Esq., Oashier.
‘ Kansas City, Mo.
“ 1 Dear Sir :—You will please remit to Donnell, Lawson & Co., 92 Broadway, New York, $5,000, for our account credit, and charge our account.
“ ‘Respectfully,
‘H. C. Cross,
‘ President,- O.’
“ Cross was President of the Bank of Emporia. The Mastín Bank then made a paper writing, in this form, viz. :
“ ‘$5,000, No. 166,655.
‘ State of - Missouri, Mastín Bank, 1 Kansas City, Mo., August 1, 1878. j
‘ Pay to the order of Credit the First National Bank of Emporia, Kansas, Five Thousand Dollars.
“ ‘To Donnell, Lawson & Co.,
‘ New York.
‘ David O. Smart,
Vice President
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“To accompany this draft or order, the Mastín Bank, at the same time, wrote to Donnell, Lawson & Co., substantially, thus:
“ ‘ Please find inclosed for the credit of the First National Bank of Emporia, Kansas, $5,000.’
“This letter and draft were placed in an envelope addressed to Donnell, Lawson & Co., and mailed by the Mastín Bank, as hereinafter stated. When this draft or order and the accompanying letter had been thus drawn, the Mastín Bank charged on its books, in its account with the Emporia Bank, the $5,000, and credited, on its books, the like amount to Donnell, Lawson & Co., in its account with them. The Mastín Bank, thereupon sent a communication to the Emporia Bank by postal card (post-marked Aug. 2, 1878) in these words, viz. :
“ ‘ Mastín Bank, . SETH E. WAB.D, President.
‘ John J. Ma.stin, Cashier,
‘ Thomas H. Mastín, Asst. Cashier.
‘ Kansas City, Mo., Aug. 1, ’78.
“ ‘ Your favor of 31, received, we remit $5,000, to Donnell, Lawson & Co., New York, to your credit.’
John J. Mastín,
‘“H. C. Cross, Cashier.’
‘ Emporia, Kansas.’
“ On the receipt of this postal card, the Emporia Bank credited on its books $5,000, to the Mastín Bank, :and charged Donnell, Lawson & Co. the like sum.
“ On the same first day of August, 1878, there was a transaction similar in all respects, between the Mastín Bank and Salina Bank, on the written request made by the letter of the Mastín Bank to 6 remit Five Thousand Dollars to Donnell,Lawson & Co., New York, for onr credit and charge our account with the same.’
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“ Thereupon, the Mastín Bank drew an order or draft, directed to Donnell, Lawson*& Co., New York, which said: ‘ Pay to the order of credit of Salina Bank five thousand dollars,’ and wrote a letter to accompany said draft, in the same form, in substance, as the letter written to accompany the order in favor of the Emporia Bank, and put the draft or order in favor of the Salina Bank, and its accompanying letter, in a separate envelope, addressed to Donnell, Lawson & Co.
“ These two envelopes and their contents, and two other separate envelopes (one of which contained an order directed to Donnell, Lawson & Co., in like form, to place to the credit of the State Savings Bank of St. Joseph, Missouri, $3,500, and an accompanying letter in like form, as previously stated, and the other of which envelopes contained an order, directed to Donnell, Lawson & Co., in like form, to place to the credit of Turner & Otis, defendants herein, $3,000, and an accompanying letter in like form as previously stated), were all placed in one envelope, directed to Donnell, Lawson & Co., and was mailed by the Mastín Bank, some time during August 1, 1878, and was received by Donnell, Lawson & Co., on the. fifth of August, 1878, some two hours after they received the telegram from the plaintiff, notifying them of the said assignment. Donnell, Lawson & Co. did not accept or act on either of these four orders or drafts ; they did not place anything to the credit of either of the parties named in these four orders or drafts. In what order of priority these four drafts or orders were drawn, does not appear, if I remember, accurately, the testimony.
“ I do not deem it important to consider the question, whether the form of the two orders, in favor of the Emporia Bank and the Salina Bank, would make them bills of exchange, if they had been delivered to these two banks, as means of enabling them to realize the amounts, in cash, or credit with Donnell, Lawson
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& Co. They never were delivered to these banks, and were not drawn with any intent that they should be so delivered.
“The request made by the Emporia Bank of the Mastín Bank, was to. ‘ remit to Donnell, Lawson & Co. five thousand dollars for our account credit.’ The request made by the Salina Bank was to ‘ remit five thousand dollars to Donnell, Lawson & Co., New York, for our credit.’ The substance of this is, 1 increase the amount of our credit with Donnell, Lawson & Co., five thousand dollars,’ and charge us the like amount.
“Omitting from the so-called orders or drafts the words ‘pay to the order of,’ and they read in the one case, ‘ credit the First National Bank of Emporia, Kansas, five thousand dollars.’ The other as drawn reads, ‘pay to the order of credit of Salina Bank five thousand dollars.’ ■ The letter accompanying each order, and to be read with it, says, ‘ please find inclosed for the credit (of either bank as the case may be), $5,000.’
“ Hence it is evident that each order and its accompanying letter consisted of private instructions from the Mastín Bank to Donnell, Lawson & Co., and amounted to a direction or request, in each case, to give a credit to the person and to the amount named in it. These instructions were unknown, so far as the evidence shows, to either the Emporia Bank or the Salina Bank. Those banks had severally requested the Mastín Bank to. increase the credit of each with Donnell, Lawson <& Co., to the amount of $5,000. The Mastín Bank undertook, in its own way, to comply with this request by sending to Donnell, Lawson & Co. the orders and accompanying letters, and thereupon notified.the two banks that they had remitted. Of course, when the Mastín Bank so wrote it had not, as matter of fact, in
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creased the credit of either bank with Donnell, Lawson & Co., and that fact was known to the defendants.
“ Donnell, Lawson & Co. knew nothing about the requests made of the Mastín Bank, or of its reply to such requests, and heard nothing of the matter until August 5, and then refused to give the credit, so that, as matter of fact, neither bank got any credit with Donnell, Lawson & Co., by reason of the transaction.
“Hence, it is clear that these two banks have no right to any part of this fund, unless the transaction between them and the Mastín Bank amounts to, or operates as an equitable assignment of the debt owing by Donnell, Lawson & Co. to the Mastín Bank on August 1, 1878. The moneys received by Donnell, Lawson &Co., from, or on account of the Mastín Bank, and credited to it on account, did not come to their possession clothed with any trust; the money so received by them, on the receipt thereof, became their moneys, and it was their duty to pay the drafts or orders drawn on them by the' Mastín Bank, as they might be presented, to the extent of their indebtedness at that time to the Mastín Bank.
“ If, in answer to the requests to remit, the- Mastín Bank had drawn and sent to each of these banks its bill of exchange or check on Donnell, Lawson & Co. for $5,000, payable to the order of such bank, such bill or check, in the hands of the payee, would not operate as an assignment of any part of the debt owing by Donnell, Lawson & Co. to the Mastín Bank (Attorney-General v. Continental Life Ins. Co., 71 JV. Y. 325).
“In that case, the insurance company drew its check for the amount of ail adjusted loss, payable to the order of the person to whom the loss was payable. It was drawn upon an institution with which the drawer deposited its moneys, and when drawn, the
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drawer had to its credit a larger sum than the amount of the check. The obvious intent of the drawer, and the only-reasonable expectation the payee could have, were, that the check would be paid, when presented, out of the funds then held by the drawee belonging to the drawer ; or, to speak with more legal accuracy, in discharge of the like amount of the drawee’s indebtedness to the drawer, existing at the time of the presentment of the check before the check was presented. But, eleven days after it was drawn, a receiver of the company was appointed, and it was held that the payee of the check did not, by reason thereof, become an -equitable assignee of any part of the indebtedness of the drawee to the drawer existing when the check was drawn.
“ Church, Ch. J., in delivering the opinion of the court, says : ‘ Banks are debtors to their ' customers for the amount of deposits. A check is a request of the customer to pay the whole or a portion of such indebtedness to the bearer or to the order of the payee. Until presented and accepted it vests no title or interest, legal or equitable, in the payee to the fund. In this case, the instruments referred to no fund; did not purport to create a lien or assignment of any fund, and the Trust Company did not even have notice of it.’
“ The orders sent by the Mastín Bank to Donnell, Lawson & Co. were in their terms as general as those of an ordinary check. They were, in effect, ‘ pay to the order of, or credit the person named $5,000.’ diving to them the most restricted meaning of which they are susceptible, they are requests to pass to the credit of each bank $5,000. They do not indicate any account of indebtedness in respect to which they are drawn, and they do not even contain any direction or authority to Donnell, Lawson & Co. to charge the amount to any specified account.
“Tohold that such orders operate as an equitable
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assignment from the time they were mailed, of a like amount of the indebtedness of Donnell, Lawson & Co. to the Mastín Bank, would create great embarrassments in transacting the kind of business in which they are engaged. The pernicious tendency of such a rule is well illustrated by the facts of this case. Suppose that the Mastín Bank had not failed, and the state of its accounts with Donnell, Lawson & Co., on the fifth of August, had been what is proved to have been, how could Donnell, Lawson & Co. ascertain what their liabilities were in respect to the four orders received on the fifth of August, at the same time, and in the same general envelope? The drafts amounted to $16,500. Their indebtedness to the Mastín Bank amounted to about $10,000. How were they to ascertain to whom the $10,000 was payable ? If each transaction is to be deemed to have been completed in Missouri, eo instante the orders were mailed, then each of the four orders took effect at the same moment of time ; and if that fact be conceded or should be established, then there would, or might be, a claim, that each was an equitable assignee, pro tanto. The defendants in this case, instead of relying upon the implied obligation of Donnell, Lawson & Co. to pay the drafts or checks of the Mastín Bank, as they might be presented, to the extent of the amount to the credit of the Mastín Bank, gave evidence tending to show an actual agreement to pay the orders which the Mastín Bank might draw on them. But the evidence, so far as it tended to show any express agreement, was an agreement to pay the checks or drafts of the Mastín Bank, when presented, to the extent of the amount then to its credit.
“The evidence does not justify the finding of an agreement between the Mastín Bank and the Bank of Emporia, or the Salina Bank, either expressed or that can be implied, that the remittance requested should.
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be made by any specified means, or by any designated procedure.
“ The request made by the Emporia Bank of the Mastín Bank was, that the latter should ‘ remit to Donnell, Lawson & Co. $5,000 for our account credit.’ Whether the Mastín Bank would as matter of choice, or as matter of necessity, would be obliged to actually remit exchange to Donnell, Lawson & Co. for the whole or a part of that amount, the Emporia Bank or the Salina Bank did not know, and could not care, provided it obtained the desired credit with Donnell, Lawson & Co. It could not, therefore, have been a just expectation of the Emporia Bank, or of the Salina Bank, that the Mastín Bank would necessarily comply with the request, by drawing upon any account it then had with Donnell, Lawson & Co., to be unaffected in its amount up to the time that the latter should hear from the Mastín Bank, by remittances to, and other drafts on Donnell, Lawson '& Co., contemporaneous with or shortly anterior in date, to the date of the transaction in question. The whole amount to the credit of the Mastín Bank on August 1, 1878, according to the course of business, might have been exhausted prior to August 5, by drafts prior in date; and the amount to its credit on August 5, may have been supplied by remittances from the Mastín Bank, received by Donnell, Lawson & Co. between August 1 and August 5. .
“ It cannot be concluded, therefore, ‘ that on the said first day of August, 1878, the Mastín Bank under and in pursuance of an agreement with • these defendants and each of them, for that purpose concluded on that day, duly assigned, transferred, and set over unto these defendants the whole of said sum of $9,786.75, then on deposit with Donnell, Lawson & Co.’ There was no formal assignment or transfer, nor was there any agreement to make one, nor is there the slightest allusion in
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the correspondence between the Bank of Emporia or the Salina Bank and the Mastín Bank, or to the state of the account between the latter and Donnell, Lawson & Co., or to the fact that any account existed between them. The answer made by the Mastín Bank to the request of the Emporia Bank to 6 remit ’ $5,000, was simply: ‘we remit $5,000 to Donnell, Lawson & Co., New York, to your credit.’ What the Mastín Bank had done, which it called remitting, it did not disclose to the Banks of Emporia, or to the Salina Bank.
“The latter could not then have approved of or adopted it, as they were ignorant of it. They were in no way affected by it, and nothing could change the state of the account between them and the Mastín Bank, except an increase by the act of the latter, of the amount of the credit of the Emporia Bank, or of the Salina Bank, with Donnell, Lawson & Co. A creditor, to create an equitable assignment to a third person, of a part of a sum owing to him by his debtor, must, at least, give to such third person an order directed to such debtor, directing him to pay a specified part of such debt to such third person, and the latter must notify the debtor thereof. The cases all hold, that to • constitute an equitable assignment, the order must specify the particular fund on which it is drawn (Att’y Gen’l v. Continental Life Insurance Co., 71 IV". Y. 325 ; Lunt y. Bank of North America, 49 Barb. 221 ; Hall y. City of Buffalo, 2 Abb. App. Gas. 301.) These cases, and the cases cited in them, illustrate the inflexibility of this rule. In the present case, the Mastín Bank did not deliver to the Bank of Emporia, any order on Donnell, Lawson & Co., or.any other paper affecting or purporting to relate to the accounts, or to any account between the Mastín Bank and Donnell, Lawson & Co. The communications between either of the defendants and the Mastín Bank, were
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simply a request by the defendant to ‘remit,’ and a reply from the Mastín Bank stating, ‘we remit.’
“The charges and credits which either thereupon entered in its books, were only bookkeeping entries, identifying the transactions, but binding neither, and of no benefit or prejudice to either, if the requested increase of credit was not effected.
“It seems to me quite clear, therefore, that neither of the defendants, by what took place between it and the Mastín Bank, became assignee of any part of the debt owing on August 1, 1878.
“I understand this to be so, whether the effect of the transaction be determined by the laws of Missouri, or the laws of New York. I think its “effect is to be determined by the laws of New York. Though the request to ‘ remit ’ reached the Mastín Bank in Missouri, what it was requested to do was to be done in New York. The increase of credit was to be effected there.
“ The action which the Mastín Bank initiated in Missouri, and described in its letter by the remark ‘we remit,’ was to be consummated in New York. It depended entirely upon what action Donnell, Lawson & Co. might take upon the request made of them by the Mastín Bank, whether the request of either defendant would be complied with or not.
“The claims that the assignment is repugnant to the laws of the State of New York, and that the power to make it under the laws of the State of Missouri was suspended by the bankrupt act, cannot, as I think, be sustained in this action. So far as appears, no proceedings in bankruptcy were ever instituted by or against the Mastín Bank. An assignment of property can be attacked as being a fraud upon the bankrupt act, only in involuntary proceedings commenced within the period after the assignment designated in that act, or be set up in subsequent voluntary proceedings in
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bankruptcy, as a bar to the discharge of the debtor under that act (Mayor v. Heilman, 13 Nat. Bariltr. Reg. 440; Yon Hun v. Elkers, 15 Id. 194; Haas v. O’Brien, 16 Id. 508). Some of these cases go further than the rule above stated. There are no resident creditors, citizens of this or any other State, contesting the validity of the assignment.
“ There do not appear to be any citizens of thin State, or other creditors of the Mas tin Bank, who have been conducting themselves with reference to the laws of this State, in regard to the property of such bank, found, or being within jurisdiction of this State, to whom those laws have impliedly promised anything as fruits of such conduct (Holmes v. Remsen, 20 Johns. 264 , 266).
“ There would seem to be no considerations of public policy which should induce our courts to refuse to aid the plaintiff to recover these funds, and distribute them according to the rights of the parties, as they may be determined by the laws of the State in which their business with each other was transacted. The defendants invoke the laws of Missouri, as they understand them, to support the claim that a transfer of the funds in suit was made to them. They deny the plaintiff’s right to this property, and claim that the validity of the transfer to him, though made and consummated in Missouri, should not be determined by the laws of Missouri.
“It is difficult to perceive why the decision of the court of appeals in Boese v. Locke (21 Alb. L. J. 54), is not equally applicable to this case. There are isolated decisions (viz.: that of Judge McCrary in Herman Savings Institution, and that of Judge Elmer in Merchants’ National Bank v. Coates, cited by defendant’s counsel as favoring the views on which he insists, and that of Judge Blatchford in Rosenthal v. Mastín Bank, cited by plaintiff’s counsel as sustaining his
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views), which fail to satisfy me that the conclusion, reached is not correct. I think the fund in court should be awarded to the plaintiff, with costs.”
Arthur, Phelps, Knevals & Ransom, attorneys, and Rastus S. Ransom, of counsel, for appellants, among other things, urged
I. The rule settled is, that no particular form of words is necessary to constitute an equitable assignment; but there must be evidence of intention to appropriate the funds ( 1 Barb. 454 ; 16 John. 50 ; 19 Id. 342-95 ; cases cited in Voorhees Code, 8 ed. p. 112, note q ; 68 N. Y. 30 ). The rule established in Kimball v. Donald (supra) and Bank of Commerce v. Bogy ( 44 Mo. 1 ), is taken from Haddock v. Gandell (15 Eng. L. & E. 30), and the application to the case at bar is easy. As to the intent, the course of business between the Mastín Bank and defendants and D., L. & Co., and the latter’s agreement to pay such •orders (made when the Mastín .Bank opened its account with D., L. & Co.), and the payment of similar orders previously, must be considered, and really is conclusive (Mandeville v. Walsh, 5 Wheat. 277 ; Christmas v. Russell, 14 Wall. 69 ; McLoon v. Linguist, 4 Ben. 9 ). The particular fund need not be named in the order. Antecedent and surrounding circumstances should be . regarded (1 H. Bl. 602; 2 Cow. & H. Notes, 1399 & 1400 ; Bellinger v. Kitts, 6 Barb. 273 , 278). A new contract by D., H. & Co. was not necessary to bind the fund (2 Story Eq. 1044; Exp. South, 3 Swans. 393). The orders amounted to more than the debt due from D., L. & Co., exclusive of interest, and an order drawn on the whole of a debt is an equitable assignment of that debt. It is clear that the papers in question were orders, not bills of exchange (Walker v. Mauro, 18 Mo. 564 ; McCain v. Weidemeyner, 25 Mo. 366 ). Suppose, after the mailing of these orders and their receipt by D., L. & Co., the Mastín Bank had
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notified them not to pay them, would they have been bound to regard that notice ? I submit that they would not. The transfer was complete. D., L. & Co. had previously been instructed by the Mastín Bank to pay such orders and had paid them, and had agreed to pay them. This agreement was for the benefit of the defendants, and their assent thereto is presumed (Rogers v. Gasnell, 58 Mo. 589 ; 2 Greenl. on Ev. § 109). The following cases are decisive upon the question under consideration: Lett v. Morris (4 Sim. 607); Bispham Eq. 221, 2 ed. ; Yeates v. Graves (1 Ves. Jr. 279, 280); Biron v. Carvalho (4 Mylne & C. 702): Hall v. City of Buffalo (1 Keyes, 193). The orders in question were accepted by D., L. & Co., because they had agreed to pay them. They had notice of them, as shown by the telegram from Salina Bank; also by the receipt of them through the mails. Hot being bills of exchange, an oral acceptance was good (McMenomy & Townsend v. Ferrers, 3 Johns. 82 , 83, and the cases there cited ; Hosack v. Rogers, 6 Paige, 415 ; Hall v. City of Buffalo, 1 Keyes, 193 ; Vreeland v. Blunt, 6 Barb. 182 ; Weston v. Barker, 12 Johns. 276 ; Canfield v. Monger, 12 Id. 346 ; 2 Story Eq. Jur. §§ 972, 1039, 1040, 1041, 1042, 1044 to 1048, and to 1057). As to equitable assignment by order unaccepted, see Parker v. City Syracuse ( 31 N. Y. 376 ); Reilly v. Demestro (7 W. D. 434); Woodfalk v. Bank of America (11 Alb. L.J. 103). These orders were but banker’s checks, and in equity, as between drawer and defendants, are assignments or appropriations of so much of the fund, and the bank on which they are drawn is liable to the holder (McGrade v. German Savings Bank, 4 Mo. App. 330 , 401). The mailing by the Mastín Bank to D., L. & Co. of the orders in question, completed the transfer of the fund to defendants, and their title thereto became vested, and on this we must bear in mind the mailing of the postal card by the Mastín
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Bank to defendants, advising them that they had remitted (1 Pars, on Cont. [6 ed.], 484, &c. ; 2 Id. 582 ; Vassar v. Camp, 11 N. Y. 441 ; Minnesota Oil Co. v. Collier Lead Co., 4 Dill. 431 ; Johnson v. Sharp, 31 Ohio, 611 ; Longstrass v. German Ins. Co., 48 Mo. 201 ; 6 Wend. 103 ; 1 Barn. & Ald. 681; 1 Mo. App. 585 ; 36 N. Y. 307 ).
II. The plaintiff took, by the assignment to him, the assets of the Mastín Bank, subject to all liens thereon, and equities existing in favor of the creditors of the bank. This proposition will not be denied, and is amply sustained by authority.
III. The assignment to plaintiff is void under the laws of this State. The defendants are not residents of this State nor of Missouri. They are and were residents of Kansas. They are, therefore, entitled to the same rights in regard to the effect of the assignment to plaintiff, as they would be if citizens of this State. That the assignment is void, see Wharton on Conflict of Laws, §§ 353, 348, a; Mosschman v. Cain ( 34 Barb. 66 ). The rule is universal, in all the States, that an assignment made in another State will not be held valid when-it conflicts with laws of the State where it is sought to be enforced (Story's Conflict of Laws, § 344; Bryan v. Brisbin, 26 Mo. 423 ; Kelly v. Crapo, 45 N. Y. 94 ; Holmes v. Remsen, 20 Johns. 264 ; Guillandet v. Howell, 35 N. Y. 657 ). The Missouri statute in regard to assignments is, to all intents and purposes, an insolvent law, and as such was suspended by the bankrupt act, and contrary to the laws of this State (Boese v. Locke, 17 Hun, 270 ; Bayley v. Greenleaf, 7 Wheat. 54 , 55 ; Green v. Demoss, 10 Hump. 371; Globe Ins. Co. v. Cleveland Ins. Co., 13 Alb. L. J. 305; Claflin v. Horseman, 14 Id. 373). The case of Boese v. Locke (supra), was reversed in the court of appeals ( 78 N. Y. 471 ), but we submit that the New Jersey statute there considered is essentially different from
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that of Missouri. What we claim in regard to the Missouri statute is, that it created the right to make the assignment, and is, in fact, a State insolvent law, under which an insolvent debtor may distribute his property under restrictions and upon conditions not allowable under the common law, and hence was suspended by the bankrupt act. The principles laid down by the court at general term in Boese v. Locke (supra), are not questioned by the court of appeals, only that they were not applicable to that particular case.
IY. The law of the place where the contract is made must govern, except it be an executory contract, in which case the the law of the place where the contract is to be performed, will control. The contract we are inspecting was that made between the Mastín Bank and the defendants, August 1, 1878, at Kansas City, not results that were to follow from such contract. It was a contract then and there fully executed and complete, by which the Mastín Bank intended to then and there assign to the defendants a debt due it by Dy L. & Co., and the defendants intended to accept such assignment as actual payment to them of their debt due by the Mastín Bank. When these orders were delivered by the Mastín Bank to the public mails, that constituted delivery to the defendants. Such mailing was the final act on the part of the Mastin' Bank in transferring its debt due by D., L. & Co., to defendants; and from that moment it lost all right, title and interest in the said debt. At to the effect of the mailing: see Barry v. Equitable Life Insurance Co. ( 59 N. Y. 594 ).
Holmes & Adams, attorneys and George H Adams„ of counsel, for respondent.

The judgment should be affirmed, with costs, upon the opinion of the referee.

Cases cited