
    H. & G. L. Coleman, Inc., et al., v. Winters National Bank & Trust Co.
    (Decided February 2, 1934.)
    
      Mr. William A. Roger and Mr. John E. Coleman, for plaintiffs in error.
    
      Mr. Hubert A. EstabrooTc, Mr. D. W. Iddings, Mr. 8. G. Kusworm and Mr. Roland McKee, for defendant in error.
   Kunkle, J.

The Winters National Bank and Trust Company in its petition in the lower court, after alleging the corporate existence of itself and the defendants, namely, H. and G. L. Coleman, incorporated, and The Central Finance Company, states that on April 28, 1931, the Union Trust Company of Dayton entered into a written contract whereby it leased to defendants certain rooms in the Union Trust Company Building for a term of five years commencing May 1, 1931; that the lessees agreed to pay as a rental for said premises the sum of $2,697 annually, in monthly installments of $224.75 each, due and payable on the first day of each month; that on October 31, 1931, Ira J. Fulton as Superintendent of Banks took possession of the property of the Union Trust Company, and as such superintendent sold and assigned to plaintiff, the Winters National Bank and Trust Company, all the right, title and interest of such superintendent and all the right, title and interest of the Union Trust Company in and to said lease and the rents thereto; that subsequently, by agreement with the parties, the monthly installments of rent were reduced to $202.28 per month; that defendants paid such rental from May, 1931, to October, 1931, inclusive, but since October, 1931, have not made payment of any monthly installment or installments. The plaintiff therefore asks judgment against defendants in the sum of $3,438.71, being the rent from November, 1931, to and including the month of February, 1933, and an additional sum computed at the rate of $202.28 per month from March 1, 1933, up to such date of final determination.

The defendants, Central Finance Company and H. and G. L. Coleman, by way of answer and set-off claim that on October 31, 1931, defendants had in their commercial deposit accounts with the Union Trust Company of Dayton, Ohio, the sum of $12,901.50; that plaintiff acquired its rights in and to the lease subject to any and all claims of the lessees against the Union Trust Company, among which is a claim for the balance now remaining in said account, amounting to $6,450.76. Defendants therefore ask that $3,438.71 of their claim be set off as against plaintiff’s demand, and that an order be issued that the remaining $3,012.05 be set off against the remaining installments as they accrue.

The plaintiff demurred to the defendants’ answer upon the ground that the same did not constitute a defense. The court sustained such demurrer, and, the defendants not desiring to plead further, finding was made upon the pleadings in favor of plaintiff for the amount prayed for in the petition, namely, $3,542.91.

From such judgment error is prosecuted to this court.

There is a conflict in the decisions of the courts of different jurisdictions upon this question, and the conflict is sharp. Counsel for plaintiffs in error in their brief cite decisions from the Supreme Courts of sister states, wherein the court of last resort has decided the question in favor of plaintiffs in error.

A few of the cases so cited might be distinguished from the case at bar, but some of the cases so cited by counsel for plaintiffs in error can not be so distinguished.

Counsel for defendant in error have also cited decisions of the Supreme Courts of different states, and also a federal decision, which clearly hold to the contrary.

In the case of Butler v. Tunnicliffe, 104 Fla., 477, 140 So., 201, the second paragraph of the syllabus reads:

“In action by liquidator for rent accruing after bank’s insolvency under lease antedating insolvency, defendant cannot set off amount on deposit when bank failed. ’ ’

In the case of Wasson v. White, 12 F. (2d.), 809, being a decision by the United States District Court of Oklahoma, the syllabus is as follows:

“A depositor in an insolvent national bank cannot set off his .deposit against a debt due the receiver, which accrued after the receivership.”

This was an action by the receiver of the bank to recover $600 and interest, rental on a store room.

In the case of White v. Wasson, 118 Okla., 29, 246 P., 445, being a decision by the Supreme Court of Oklahoma in the case above referred to, the second paragraph of the syllabus is as follows:

“A bank deposit cannot be pleaded as an offset against an indebtedness arising after tbe dissolution of tbe bank.”

See also tbe reasoning of tbe court as found in tbe following cases: Crandell v. Rappaport, 233 N. Y. Supp., 32; Derby v. Brandt, 90 N. Y. Supp., 980; Chicago Architectural Iron Works v. McKey, 93 Ill. App., 244; Washburn Waterworks Co. v. City of Washburn, 196 Wis., 566, 218 N. W., 825.

From our examination of tbe authorities cited, we are of opinion that tbe .weight of authority and tbe better reasoning, as found in such authorities, support the contention of defendant in error.

Finding no error in tbe record which we consider prejudicial to plaintiffs in error, tbe judgment of the lower court will be affirmed.

Judgment affirmed.

Hornbeck, P. J., and Barnes, J., concur.  