Gnarini v. Swiss American Bank

[183]

THE COURT.

The justices of the district court of appeal for the first appellate district being unable to agree upon a decision in the above entitled cause, it was certified to this court for determination.

Justice Kerrigan of the court of appeals had prepared the following opinion, which, meeting and expressing, as it does, the views of this court, is hereby adopted as its opinion, and for the reasons therein stated the judgment and order appealed from are reversed.

“This is an appeal from a judgment in favor of the defendant and from an order denying plaintiff’s motion for a new trial.

“On July 1, 1904, Cain, Boyd

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Corriea, a corporation, was, upon petition of its creditors, declared and adjudged to be a bankrupt, and subsequently the plaintiff was duly elected trustee of said bankrupt. On June 10, 1904, the bankrupt had a considerable balance to its credit with the defendant bank, and the account was closed and balanced by the bank by charging to the account a note executed in its favor by Cain, Boyd & Corriea. The bankrupt was originally a co-partnership doing business in this state under the firm name of Cain, Boyd & Corriea, but afterwards was incorporated, and conducted business under the same identical name, and was composed of the old firm members with the exception of two nominal holders of two shares of stock. The indebtedness to the bank arose in the following manner: On January 27, 1903, Cain, a member of the said firm, and his wife, to secure a personal loan to Cain, executed a mortgage in favor of the bank, which mortgage among other provisions recited that it was given to secure ‘the repayment of all other and further advances made or which may in the future be made by said mortgagee ... to the firm of Cain, Boyd

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Corriea.’ On February 2, 1903, the defendant bank loaned the firm of Cain, Boyd & Corriea the sum of $2,000, taking their note for this sum. After the firm was incorporated the note was marked ‘Paid,’ and surrendered by the bank to the corporation, and $100 having been paid on account thereof a new note dated June 4, 1904, was made in favor of the bank for $1,900. Both of these notes bore the same signature, i. e., Cain, Boyd & Corriea. Eleven days after the giving of this note, and immediately prior to the institution of the proceed