
    CHIPPEWA COUNTY STATE BANK, BY A. J. VEIGEL v. SUMNER L. MOYER.
    
    March 18, 1927.
    No. 25,934.
    Debtor to insolvent bank has right to set off his actually due claim against bank.
    1. When a bank goes into liquidation a debtor of the bank, who has a then due claim against the bank, has a right of legal set-off.
    Unaffected by cited sections of statute.
    2. The right of legal set-off is not affected by G. S. 1923, §§ 7688-7689, referring to claims against the bank after possession is taken for the purpose of liquidation, the right of the examiner to reject claims, and suits thereon.
    Banks and Banking, 7 C. J. p. 745 n. 8 New.
    See note in 25 A. L. R. 938; 3 R. C. L. 529; 1 R. C. L. Supp. 845; 4 R. C. L. Supp. 194; 5 R. C. L. Supp. 178.
    Plaintiff appealed from an order of the district court for Chippewa county, Baker, J., denying its motion for a new trial.
    Affirmed.
    
      G. D. Bensel, for appellant.
    
      A. E. Kief, for respondent.
    
      
      Reported in 212 N. W. 895.
    
   Dibell, J.

Action to recover on a promissory note made by the defendant to the plaintiff Chippewa County State Bank. The defendant interposed an offset for an amount less than the amount due on the note. The action was tried to the court and there was a finding for the plaintiff for the difference between the amount due on the note and the amount of the offset. The plaintiff appeals from the order denying its motion for a new trial.

On December 3, 1923, the defendant made a note to the plaintiff bank for $2,591.85, due on June 3, 1924. On May 29, 1924, the bank was taken over by tbe plaintiff Veigel, commissioner of banks, and is in liquidation. Tbe note had at this time been reduced to about $1,400. Tbe amended complaint is dated October 20, 1925. We infer that suit on tbe note bad been brought by tbe bank before, and that when it went into liquidation tbe amendment was made, and that tbe commissioner joined with tbe plaintiff in maintaining tbe suit. The defendant interposed a set-off, which tbe court on sufficient evidence found valid, for rent due from tbe bank to tbe defendant, leaving a balance of $860.51 due, for which tbe court ordered judgment. Tbe rent was due at tbe time tbe bank went into liquidation on May 29, 1924. Tbe only question is whether tbe rent was a proper offset to tbe note.

This is not a doubtful question. Tbe defendant claims an equitable set-off. His rent, which be proposed offsetting against tbe note, was overdue. He bad a legal set-off. G. S. 1923, § 9166; Meighan v. Cohen, 161 Minn. 302, 201 N. W. 431; Laybourn v. Seymour, 53 Minn. 105, 54 N. W. 941, 39 Am. St. 579. If tbe rent bad not been due when tbe bank went into liquidation, tbe right of equitable set-off might be discussed. St. Paul & M. T. Co. v. Leck, 57 Minn. 87, 58 N. W. 826, 47 Am. St. 576; Laybourn v. Seymour, 53 Minn. 105, 54 N. W. 941, 39 Am. St. 579; Wunderlich v. Merchants Nat. Bank, 109 Minn. 468, 124 N. W. 223, 27 L. R. A. (N. S.) 811, 134 Am. St. 788.

Tbe claim is made that no right of offset exists after tbe bank is in liquidation. It is based on G. S. 1923, § 7688, which provides that immediately upon taking possession tbe examiner shall give notice to all banks or individuals bolding or having in possession assets of tbe bank, and thereafter there shall be no lien or charge against tbe assets of tbe bank for any payment, advance or clearance thereafter made, or liability thereafter incurred; and § 7689, which gives tbe examiner authority to reject a claim, and which provides that if so rejected suit may be brought upon it by tbe creditor. Neither section affects tbe creditor's right of legal set-off.

Order affirmed.  