
    CLOSE v FULTON
    Ohio Appeals, 6th Dist, Lucas Co
    No 2698.
    Decided Dec 5, 1932
    Kirkbride, Boesel, Frease & Cole, Toledo, and Bert P. Hebenstreit for plaintiff.
    Gilbert Bettman, Attorney General, Columbus, and Charles W. Racine, Special Counsel, Toledo, for defendant.
   LLOYD, J.

Plaintiff contends that the Dorn check of $10,000.00 was deposited for and received by The Ohio Savings Bank & Trust Company for collection and that since it was not paid until after the bank had closed, the amount thereof should be adjudged to be a preferred claim and ordered paid as such. The evidence indisputably shows that for many years prior to August 15, 1931, Close had continuously maintained a commercial account at The Ohio Savings Bank & Trust Company, and that during all of that time he had been accustomed to and had exercised the privilege of drawing checks thereon without regard to whether the deposits from time to time made by him consisted of cash or of checks or other negotiable paper and without regard to whether the same were to be forwarded for collection or had or had not in fact been paid. In the instant case the Dorn check of $10,000.00 was deposited for the express purpose of creating a balance sufficient to pay the $9,000.00 check drawn the day before in favor of The Lloyd Bro’s. Company as well as to pay other checks drawn by Close on August 14th and 15th, and the checks so drawn were honored by The Ohio Savings Bank & Trust Company before payment of the Dorn check by the Sandusky bank upon which it was drawn.

In view of the foregoing facts, we conclude that whatever the character of the deposit when made, the parties by then-subsequent acts and conduct fixed their relationship to this particular deposit as that of debtor and creditor, and that the plaintiff is not entitled to the preference sought.

Decree accordingly.

RICHARDS and WILLIAMS, JJ, concur.  